Labour Law and Industrial Relations Together Everyone Achieves More BSc (Hons.) Human Resource Management 2016Table of Contents Award.. Bargaining Agent... Bargaining Unit. Cheek-off Agreement. Colles ive Agreement... ‘Wages and Remuneration . Suspension Remunerations Order 15 Unfair Labour Practice. 16 Access to workplace 18 Arbitration.. Overtime ... Disclosure of Information... 21 Collective Bargaining 23 Sole Bargaining Agent... 124 Closed Shop... Dead Lock during Negotiation... 26 Mediation 27 Workplace Mediation. 28 Essential services 28 Legal representatives ......... Picketing Strike... Lock-out Alternate Dispute Resolution.. Coneiliation, Unfair Dismissal ... Re-instatement Re-employment cy Voluntary arbitration. 7 Labour Law and Industrial Relations | 1Employment Relations. Employment Rights... Continuous employment... 42 Define a job contract. 45 Promotion. 48, Labour Dispute. 50 Joint Negotiating Panel 52 Joint Negotiating Committee. Disciplinary Sanctions Young person... Harassment..... Sole bargaining agent. Negotiating rights... Conciliation... al Mediation... on sesnnnnnnnnnnn enn sesnee T2 1. Contract Of Employment (Agreement And Essentials)... 75 2. Particulars Of A Contract Of Employment .. 79 3. Duties Of An Employee .... sennenne denne ove SL 4. Duties Of An Employer 83 5. Rights Of An Employer 86 6. Determinate and Indeterminate Duration of an Agreement 88 7. Variation Of Agreement 91 8 Termination Of An Agreement (Agreement & Essentials)... 198 9. Various Reasons For Termination Of Contract . 10. Remedies to an Employee in Case of a Breach of Contract . 11. Remedies Available to an Employer In Case ofa Breach of a 12. Disciplinary Actions Available To An Employer. 13. Meaning Of Termination of an Employment... 14. Meaning of Worker... 15. Substantive Fairness In Law Relating To Dismissal 16. Constructive Dismissal 119 Labour Law and Industrial Relations | 217. Automatically Unfair Dismissal . 121 18, Various forms of Misconduct. 124 19, Those who are not entitled to join the workfare programme 130 20, Those who are eligible to join the Workfare Programme 132 21, Legal status of a trade union and its function 134 22. Meaning of a worker’s involvement in trade union activities. 140 23, Recognition of a trade union. 142 24, — Rights of a recognised trade union. 145 25. The role of management in an enterprise.. 149 26. Procedural Faimess in the law of dismissal 154 27. Collective agreement .. 158 163 167 28. Procedure agreement and its content.. 29, Legal status of a collective agreement. 30, Extension of a collective agreement . 169 31, Variation of a collective agreement rcv sesennnnnss vee 1B 32. Contents ofa collective agreement 174 33, Bargaining for good faith. 176 34, Check off agreement 183 35. Agency Shop Agreement... 186 36, Trade Unions Activities 188 37. Negotiator of a trade Union. 190 38. Procedural Requirements for a Protected Strike... 191 39, Procedural Requirements for a legal lock-out... 193 40, Bargaining in Bad Faith... 195 41, Definition of a Worker: 196 42, Meaning of Discrimination 197 43, Inherent Requirements 201 44, Procedural fairness related to the termination of a worker's agreement due its poor performance 202 206 46. Procedural Fairness Related to the Termination of a Worker's Agreement Due to His Misconduct. 208 45. Requirements of Notice of Termination of an Agreement.... 47. _ Notification of a Charge of Misconduct and Poor Performance. 21s Labour Law and Industrial Relations | 348. Law related to suspension of a worker pending the outcome of disciplinary proceeding 217 49, Procedures for the Reduction of Workforce either Temporarily or Permanently or Close Down... 218 50, Meaning of Labour Dispute..... 224 51, Functions of the Commission for Conciliation and Mediation... 227 52, Functions of the Employment Relations Tribunal . 230 53. Functions of the National Remuneration Board... 232 54, Protection against termination of an agreement... 1 236 55, Reasons for termination of an agreement, 24I 56, Reasons for payment of severance allowance. 248 57. Quantum of severance allowance in case of termination due to economic, technical or structural reasons 251 58. Medical Facilities... 253 59, Maternity Benefits 254 60, Paternity leave... 287 61, Capacity and competence of a worker to enter into an agreement 258 62. Statutory conditions to be included in a contract of employment. 289 63. Normal Working Hours. 260 64, Shift Work... sccsnennnnnnnnisnnnsnnnnnnnnntnninsinnnsennnisn senneseee 262 65. _ Payment of remuneration in respect to public holiday. 264 66, Equal remuneration for work of equal value. 265 67, Payment of remuneration... 267 68, Payment of remuneration in special circumstances. + 269 69. Payment of remuneration due to termination of agreement ...... 270 70. Annual Leave 272 71. Sick leave 274 72, Matemity Leave 216 73. Paternity Leave. 279 74, Procedures for the Reduction of Workforce 281 75, Right for Overtime... ven senna oes 288, 76. — Payment for Work on Public Holiday.... 291 77. Requirements and Practice that are Reasonable and non- Discriminatory... 293 Labour Law and Industrial Relations | 478, Right for Meal and Tea Breaks. 296 79, Right for Meal Allowance. 298 80, Transport of Workers. 81, Meaning of Continuous Employment of a Worker 302 82, Consideration for Full-Time Employment. 304 83, Equal pay for work of equal value comparable full time worker Interpretation. 305 84, Normal Working Hours. 308 85. Overtime pay.. 86, Payment of remuneration... 312 87. Proactive trade unionism...... 316 88, Management responsibilities for good employment relations 319 89, Procedures for reporting a labour dispute to the president of the commission for conciliation and mediation section 64 Employment Relations Act 325 90, Reasons for rejecting a report of labour dispute by the president. 327 91. Procedures adopted by the commission to conciliate and mediate so as to promote a settlement of a labour dispute 330 92. Grounds on which registration of a trade union may be cancelled 93. Basic employers’ rights to freedom of association 94, Define a part-time worker 95, Define a job contract. 350 REMUNERATION ORDERS... Labour Law and Industrial Relations | 5Acknowledgement More than words can tell but in two simple words, Thank you to the guidance of our dearest Professor Ved Prukash Torul. This manual was and will be a dedicated achievement of and for, the students of the BSc (Hons) Human Resource Management Year 3 (2016). The achievers are so listed: Ramsahai Kamlesh Chunnee karen Elsa Lutchmun Vishnu T. Laboree Emeline Sirputty Krishtee Niclair Anne Sophie Wong Tong Chung Anne-Laure W. Mayaram Vijaya Bignoux Marisa Gungaram Mamta Gopal Karen Janboceus Zikrah Prosper Sylvianie Coothen Hema Veeren Divya Errappa Desheeta Jugessur Ashwini Hyacinthe Stephanie Sookun Chaya Narain Shilpa Saraye Khushila Durvashi Naiko Manikum Poovanum Hoolash Benazeer Soodhoo Sazzia Radhoa Drishti Sidaya Lailesh Kureemun Sharmeen Smit L. Daniella Chundoo Saamiyah Luchmun Anisha Hassarup Rukhsaar Labour Law and Industrial Relations | 6TERMS AND CONCEPTSAward ‘The Tribunal may intervene in such matters of Labour disputes where no agreement is yet reached through the Commission of Conciliation and Mediation. In such case, the Commission may refer the labour dispute case to the Tribunal for arbitration. An Award or Arbitral Award is defined as any decision of the arbitral tribunal on the substance of the dispute submitted to it, in other words, a judgement decided at the arbitral tribunal for a specific arbitration proceeding. An arbitration award can be made for payment of a sum of money, declaration upon any matter to be determined in the arbitration proceedings or can be of non-monetary nature (if the claimants’ claims fail and no money needs to be paid by either party). Essentials of an Award: ‘+ To be published in the Gazette, where the decision of such award take immediate effect on the parties concerned. ‘A variation to the award can be claimed to the Tribunal and henceforth applied if the variation is justified ‘+ An award of a specific employee under a specific employer, may be claimed to be extended to another employer by a Trade union, upon proof of same alleged activities are carried out by the other employer. ‘* An award may be claimed to be extended to a whole industry, where a substantial proportion of workers or employers are into such activities deemed corrected by the Tribunal ‘* The Tribunal shall, after hearing the parties concemed, make a declaration’ decision/ judgement within 60 days of the receipt of the application from the Commission. * The Tribunal may modify an award, upon incidental, clerical ror or omission or inconsistency found in its original award. Labour Law and Industrial Relations | &Bargaining Agent Guidance from the Employment Relations Act 2008: Part 4 - Protection of Fundamental Rights, Sub-Part A - Basic Worker's Rights to Freedom of Association; Section 29 inspires that a worker, by unarguable restraints, shall be entitled to freedom of engagement and aspiration towards joining or building a Trade Union, This essential Right (privileges and/or faultless restraints) come in handy as the Trade Union or Joint Negotiating Panel join hands with the worker to safeguard, negotiate the worker's rights at his/her place of work. ‘The Trade Union or Joint Negotiating Panel (having negotiating rights), as a statute for fairness of equality, is in right to bargain and represent the rights of the worker. In such time of negotiation, it is then why the Trade Union or Joint Negotiating Panel can be referred as "Bargaining agent’ An important note is to add that an employer can also join/establish a Trade Union (Section 32) and thus the employer's ‘bargaining agent’ is represented by his/her affiliated Trade Union; federation of employers; confederation of employers or international employers’ organisations. Bargaining Unit Collective bargaining (Fourth Schedule section 89 of the Employment Rights Act 2008) in an establishment or undertaking is conducted in relation to defined groups of employees which can appropriately be covered by one negotiating process. A bargaining unit shall cover as wide a group of employees as practicable. Too many small units make it difficult to ensure that related groups of employees are treated consistently. The number of separate units can often be reduced by the formation of a joint negotiating panel representing anumber of unions. The interests of employees covered by a bargaining unit need not be identical, but there shall be a substantial degree of common interest. In deciding the pattern of bargaining arrangements, the need to take into account the distinct interests of professional or other employees who form a minority group shall be balanced against the need to avoid unduly small bargaining units Labour Law and Industrial Relations | 9Factors which shall be taken into account in defining a bargaining unit include ~ (a) the nature of the work; (b) the training, experience and professional or other qualifications of the employees concemed; (0) the extent to which they have common interests; (W) the general wishes of the employees concemed; (©) the organisation and location of the work; (f) hours, working arrangements and payment systems; (g) the matters to be bargained about; (h) the need to fit the bargaining unit into the pattern of union and management organisation; (i) the need to avoid disruption of adequate existing bargaining arrangements which are working well; () whether separate bargaining arrangements are needed for particular categories of employees, such as supervisors or employees who represent management in negotiation. Where proposals are made for establishing or varying a bargaining unit, the first aim of, ‘management and unions shall be to reach agreement on a voluntary basis. Where this proves impossible, parties shall, jointly or separately, consider- (a) referring the matter to an employers’ association, or to a higher level within the trade union; (b) referring the matter to the Commission for examination and advice. Check-off Agreement The conditions of eligibility for membership to a Trade union and the procedure for dealing with applications for membership (provision for appeals against decisions of one party, for example) ccan be dealt in the form of a check-off agreement. It refers to an agreement between the Trade Union to an employer; to deduct the monthly union membership dues, from the worker's wages and provide the trade union with this amount. Labour Law and Industrial Relations | 10Conditions for this application: * The worker/s, if agreeable to this form of membership payment, shall sign a written authorisation to further the Check-off agreement, as their part is concerned. * The Trade union shall inform the employer, in writing, at least 6 weeks in advance of the effective date the Check-off agreement would start. The union membership fee is commonly based on the wage rate, number of hours working and other conditions of work, for a worker. It is then a distinct requirement for the employer to inform the Trade union of any change in those working features, for proper negotiation and change, to occur and apply. Collective Agreement Following in right order, after the parties have signed the Recognition Agreement and the Procedure Agreement (terms and conditions to regulate the Industrial relations between a recognised Trade union or Joint Negotiating Panel and the management/employer), these parties can enter into a Collective Agreement, In other words, after the parties have signed the guidelines of expressive terms and conditions by which they are allowed to collectively negotiate, they can enter into a Collective Agreement. The Collective Agreement is within itself an agreement by the recognised Trade union/Joint ‘Negotiating Panel and the employer about the terms and conditions of worker/s' employment status. Negotiating the terms and conditions or any subject matter in the agreement is carried within a Collective Bargaining. Into the Collective Agreement, the contexts of Recognition Agreement and Substantive Agreement are renewed accordingly to an agreed and unique sets of terms and conditions, for a specific worker, by the worker's Trade union and hi/her employer. For example, the Substantive Agreement is concemed with the worker's wage rates, hours of work among other factors. It is of most concem to understand also that Collective Agreement overwrites any Labour Law and Industrial Relations | 11other Individual contract of employment made by the employee and the employer, only. In other words, employees who are affiliated with ‘Trade Unions/Joint Negotiating Panel, need to follow their agreed and renewed terms and conditions of the Collective Agreement, Wages and Remuneration Where a contract of employment has been agreed between the two parties, that is the employer and employee, the employee undertakes to place his/her personal service at the disposal of the employer in return for a fixed or ascertainable wage. A contract is invalid till an employee is not sure about his/her salary. ‘A wage is all emoluments in cash and all gratuity including bonuses and overtime. The remuneration shall be paid by cheque or into the workers" bank account if there is an agreement, It should be paid during working hours at the workplace when paid in cash or cheque not later than the last day of the pay period, Intervals between two salary payments shall not exceed one month. No agreement is valid if it mentions an interval exceeding one month. However, employers and employees may enter into agreement for pay intervals of less than one month, It is compulsory to give employees payslips. ‘A worker performing on a public holiday eams twice his hourly rate for each hour worked on that day. Overtime should be on mutual agreement. On expected future overtime, the employer has the duty to give a 24hour notice to his employee (wherever possible) and the latter may refuse to attend such overtime work, with a 24 hour notice, A worker performing more than the hours specified in an agreement in a fortnight shall be remunerated at one and a half times the national rate per hour for each hour performed. The cost of transport should be borne by the employer and refunded to the employee if the permanent residence of the latter is more than 3kms from the place of work, If called to work Labour Law and Industrial Relations | 12after normal working hours (Where public transport is not available), the employee has the right to a free transport means from his employer, irrespective of the 3kms. Every employee shall be entitled to meal allowance unless the employer is providing them, for example La Pirogue Resort & Spa provides to its employees with breakfast, lunch and afternoon tea, Where a worker is required to perform more than 2 hours" extra work after his normal working hours on any day of the week, on a public holiday or not, he shall be provided with an adequate free meal or be paid a meal allowance in addition to any remuneration due for overtime work. In specific circumstances an employer is required to pay a worker a full day’s remuneration. First is where the employer is unable to provide a work to the worker. Second, where work has stopped afier the worker has worked for more than two hours because of climatic conditions, power failure or a breakdown in machinery or appliances, However, a worker will be entitled to only half a day's remuneration where work has been stopped before the worker has completed two hours or where the employer has taken the view that no work can be performed owing to climatic conditions, power failure or breakdown in machinery or appliances. Suspension ‘Suspension is defined as the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay” (US Legal). An employer is usually entitled to suspend you at work pending an investigation of gross misconduct or other serious disciplinary matter. There are two types of suspension: suspension with pay and suspension without pay. Often disciplinary procedures will contain a provision enabling the employer to suspend an individual, with pay, such as while an investigation is taking place into allegations of misconduct. For example, if the employer is investing for a gross misconduct, he may suspend on pay the accused employee for a short period. He might also be asked by the employer not to talk to other employees, customers or other shareholders. On the other hand, suspension without pay is a disciplinary sanction which is intended to be corrective and punitive measure. Labour Law and Industrial Relations | 13,‘The worker guide of the Employment Right Act 2008 provides that where an employer suspends a worker pending the outcome of disciplinary proceedings against the worker on account of worker's misconduct, any period of such suspension shall be on full pay, unless the employee himself applies for an extension in which case the suspension will be without pay and that in all, cases the employee should be informed about the reason he is being suspended. ‘Case Scenario Facts: Mr. Jack works at B Burger Company since 3 years. Six months before, he received a first written warning for using fou! language in front of his colleagues during working hour. However, he stopped this forbidden action until last week, where he intentionally abuses a customer. Disciplinary Actions: An employee may choose to suspend without pay the employee (Mr. Jack) for a short period for the reason of misconduct at work after a written warning, The HR manager should conduct a disciplinary meeting with Mr. Jack; provide him with a written notice which should include the type of the disciplinary actions and reasons of the disciplinary action, However on the other hand if the employer has suspended you without any reasonable grounds to do so, or takes an inordinate amount of time in carrying out an investigation thus making it untenable for you to go back to work, then you may have a case for constructive dismissal. Suspension as a disciplinary can highlight to the employee the seriousness of the matter and breakdown of trust To immediately stop the employee carrying on the gross misconduet that is being alleged stop the employee interacting with other employees or clients/customers of the employer, which may otherwise cause a detrimental effect of the business. However, this disciplinary action is considered as a less severe alternative rather than dismissal. An employee should not be permitted to engage in alternative employment without the employer’s permission as they remain in the employment of his or her primary employer. However, employee can obtain temporary employment if he or she is suspended without pay. Labour Law and Industrial Relations | 14Remunerations Order ‘The National Remuneration Board (NRB) The National Remuneration Board (NRB) is a quasi-judicial body which consists of a Chairperson and a Vice Chairperson and they are assisted by a multidisciplinary team of technical staff'researchers in the form of Remuneration Analysts, Labour Officers, Accountant and Statistics Officer. The NRB initially established under Section 45 of the Repealed Industrial Relations Act which is now deemed to have been set up under Section 90 of the Employment Relations Act [ERA] and its main function is to make recommendations to the Minister regarding minimum remuneration and terms and conditions of employment in the private sector. These recommendations form the basis for the Remuneration Order [RO] Regulations. Presently there are 30 distinet sectors governed by ROs with an average of 300,000 workers. ‘The Honourable Minister may accept, reject amend or refer back the recommendations to the Board with a request to consider them in the light of his observation and on submission of a fresh recommendation and the Minister may also approve or reject same and make no regulations or such regulations as he thinks fit, According to the section 93 (2), where the Minister refers a recommendation back to the Board under subsection (1), the Board shall reconsider the recommendation and make a fresh recommendation to the Minister and, on submission of a fresh recommendation by the Board, the Minister may again make regulations for implementing the recommendation or reject the fresh recommendation and make no regulations or make such regulations as he thinks fit, Based on the Remuneration Regulations, section (4), any regulation made under this section shall take effect from a date which shall be specified in the regulations and different dates may be fixed, How does the Board proce According to the section 92 in the employment relation act, the board proceed as follows to submit any recommendation: ‘* Make investigations as it thinks fits; ‘Publish in the Gazette and in at least 3 daily newspapers a notice specifying that copies of the recommendation it proposes to make may be obtained at the office of the Board; ‘+ Consider any written representations made within the time specified in the notice; Labour Law and Industrial Relations | 15‘+ Make such further enquiries or give such further consideration to the matter as it thinks fit At last, the Board shall, not later than 28 days after the last publication of the notice under subsection (1) (b), submit its recommendation to the Minister, either with or without amendments to the proposed recommendation as it thinks fit. According to the additional remuneration (2016) Bill, all employees are allowed of an increase in wage of salary designed specifically to compensate the employee for an increase in the cost of living during 1 January 2016 to 31 December 2016, The increase of salary is as follows: SCHEDULE {Section 2) ADDITIONAL REMUNERATION PART | - FULL-TIME EMPLOYEES ‘Monthly basic wage or selary Additional remuneration per month Up to 10,000 rupees 250 rupees Above 10,000 rupees 150 rupees PART Il - PART-TIME EMPLOYEES ‘Monthly basic wage or salary ‘Additional remuneration per month Up to 10,000 rupees 2.5 per cent rounded up to the next rupee Above 10,000 rupees 150 rupees Unfair Labour Practice As pet mentioned in the subsection (4) of the section 54, “For the purposes of this section, “unfair labour practice” means any act or omission on the part of any party which undermines the bargaining process.” This section has to do with the unjust, biased and inequitable working procedures and systems. These includes any doings, wrong actions or exclusions and gaps that a party involved in the joint bargaining process holds against the other one with sole aims to destabilise and weakens adversaries. It can be in forms of an unfair conduct of an employer relating to the promotion or demotion or probation of an worker, preferential treatment relating Labour Law and Industrial Relations | 16to the endowment of training and distribution of benefits, like company cars insurance, among, other hikes, to an worker, imbalanced disciplinary action against an worker, for example a final written waming or unfair suspension or summary dismissal without any plausible reason or the refusal to reinstate or re-employ a former worker in terms of any agreement, like for a retrenchment, as under sections 39B (9) (a) and 46 (5B) (a) of the Employment Rights Act 2008. Subsection (1) asserts that no parties either the workers, trade union or the employer should not adopt or use any kind of prejudicial or dishonest practices or methods during the collective bargaining process that is when the parties concerned are involved in negotiations on workers” working terms and conditions. This implies that everyone shall act, think, bargain and take decisions in a more objective and rational manner and be fair against each other. Examples of unfair practices are for instance employers preventing workers to arrange union support, conspiring a state of constructive dismissal, bribing unions to manipulate bargaining practices for personal or professional benefits and when union goes on strikes for illegal purposes. These are considered as unethical and dishonest with intentions of weakening the other party during the progression of the discussions and agreement to balance the result in their favour. One example where workers faced an injustice was the strike launched by workers of the sugar industry on the 19® November 2014 claiming for a 30% salary increase. The Mauritius Sugar Producer's Association (MSPA) has called for the Joint Negotiating Panel to get in contact with Employment Relations Tribunal to find a solution. But what was unfair, to the syndicalist, was that the employers firmly stated that the workers would not be remunerated during the days they went on strikes, which is according to them against what the law instilled. Subsection (2) conveys that any partaker in the process of negotiation who feel that they have been subjected to and affected by any dishonourable and discriminating labour practices from the other parties in view of intimidation may eventually submit an application to the Tribunal to contest and to get a legal order requesting the ‘accused’ party to stop any of these unfair practices mentioned and the Tribunal may adhere and acknowledge the appeal made, according to what he or she thinks suits the situation, after listening to the pledge of both parties. The order has to be initiated within 30 days as from the date of the submission of the request. Labour Law and Industrial Relations | 17(3) expresses that a party has the obligation to abide by the instructions of the order instigated by the Tribunal made under the subsection (2) during a delay not exceeding 14 days as from the date that the Tribunal issued the order. Mrs.Logamani Vithaila Govindan & Mrs.Seela Amoorgapillay v Maydon Fashion Ltd 33 IND 2010 This case illustrates an unfair labour practice. The Defendant unilaterally changed the working hours of the plaintiffs without consulting the latter. The Court held that it was within the Defendant's discretion to change the plaintiffs’ working hours as an employer has the inherent power of administration. However, it was multiple factors, in respect to the way that the change in working hours occurred, which is claimed to have constituted to the dismissal of the plaintiffs causing their contract of employment to be disrupted, and not only the change in working hours by themselves. The plait fs were informed of the change in hours at very short notice, they were told that they could resign if they were not happy with the change, they were not given a chance to voice out their difficulties and, more importantly, they also denied access to the work premises ‘on two days. The court ordered the defendant to pay severance allowance of 8% annually as from the date of dismissal until the date of payment and to award both plaintiffs with the sum of Rs 602, 255 and Rs 830, 415 respectively, for indemnity in lieu of notice for unjustified termination of employment, Access to workplace Section 40 emphasize that a recognised trade union can get access to the work premises. Subsection (1) underscores that provided that a notice is provided to the employer, to inform the latter of the visit, and approval has been given upon the time, place and the reason of the visit, any executive or mediator of the established trade union or joint negotiating panel of the enterprise have the right to penetrate the employer's properties to partake into the collective ist the benefits of its adherents, to handle bargaining process or for any other activities to a health and safety issues of workers, to ensure that the clauses of the collective agreement is well respected and to correspond with, organise me gs and negotiate on trade union matters. However, as per subsection (2), these activities need to be effected in a way that it protects the Labour Law and Industrial Relations | 18privacy of life and respects the preservations of property as well as not impacting on the smooth running of the daily business operations avoiding any disturbances upon the work. In reference to subsection (1), clause (3) outlines that a delegate or a mediator of a trade union shall specify the reason or motives of his or her visit before entering the organisation. He or she should also supply a proof to testify that he or she has the rightful power to act for the trade union. Clause (4), defines that any executive or mediator by irtue of his or her legitimate rights, apart from notifying the time and purpose of the visit, can access an organisation local to represent an worker being a member of the trade union he or she is part of. Nevertheless if the executive or mediator has been refused access to the premises of the business by the employer or any other representative for no justifying reasons, the trade union can appeal to the Tribunal for an order as per subsection (5), Such request needs to be settled during a time laps of 30 days as from the issue date of the application as under clause (6). Where the Tribunal has acknowledge the application or agrees with the trade union representative that he or she has been unfairly refused access to the firm’s grounds, as per (5), subsection (7) argues that the Tribunal can make an order compelling the employer to grant entry to the officer following certain terms as it may impose, and according to part (8) the employer have to abide by that order of the Tribunal within a period of time not beyond 7 days as from the issue date of the order. WESUSA v Isidingo Security Services MP6881-06, “The applicant, a registered trade union, sought access rights to the respondent's workplace and stop order payment facility for its members’ fees. The respondent denied granting the applicant those rights. It contended that the trade union membership constituted only 3% of its total workforce and, therefore, it was not sufficiently representative. It claimed that its operations were centralised at the head office, and the various sites throughout the country dealt with minor Labour Law and Industrial Relations | 19operational issues. However, the applicant argued that the figure cited by the respondent was incorrect, indicating that its total workforce was 5000. ” Held: The application was, therefore, dismissed since the respondent did not meet the requirements as per the LRA to be granted such organisational rights. Arbitration Arbitration is a well-established and commonly used means to end disputes. It is one of the different ways of alternative dispute resolution, which provide parties to a disagreement with a choice other than litigation. Unlike litigation, arbitration takes place out of court. The two parties select an impartial third party, known as the arbitrator; and initially agree to comply with the arbitrator’s decision. Then they participate in a hearing where each party can present evidence and testimony. In such cases, the arbitrator’ decision is usually final and courts rarely re-examine it. For example, unions and employers almost always put an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate any future worker grievances over wages, hours, working conditions or job security — in essence, they agree not to sue if disagreements occur. Similarly, a purchaser and a provider of services who disagree over the results of a business deal may submit the problem to an arbitrator instead of court. In Mall Of Mont Choisy Limited v Pick ‘N Pay Retailers (Proprietary) Limited & Ors 2015 SCJ10. The Claimant brought an action in the Supreme Court seeking sums under an agreement to develop and lease a shopping centre in Mauritius. The defendant made an application under section 5 of IAA 2008 to refer the matter to arbitration, on the grounds that an arbitration clause in the lease over the property covered the dispute. Section 5 provides that where proceedings are started in a Mauritian court and it is asserted that the dispute is covered by an arbitration Labour Law and Industrial Relations | 20agreement, the matter shall be referred immediately to the Supreme Court. Unless the party denying the arbitration agreement can show before the Supreme Court, on a prima facie basis, a very strong probability that the arbitration agreement is null and void, inoperative or incapable of being performed, the Supreme Court will refer the case to arbitration, The Claimant asserted that the lease, including the arbitration clause, had not become binding because it had been signed only as a holding measure by one director, while negotiations continued. The Supreme Court decided to refer the dispute to arbitration. After considering Canadian jurisprudence on the approach to applications to stay for arbitration, and the [AA 2008 and the Travaux Préparatoires, the court decided that a non-interventionist approach should be taken. Overtime Overtime refers to the excess of hours worked in a payroll week that is the number of hours worked after a worker has completed the stipulated number of hours of actual work per week. It the work done by hourly workers beyond the regular work hours per week. As such, for example any work over the 45 hours per week performed by a worker is considered to be overtime. While in the case of the watchman, any work completed over 72 hours shall be considered as overtime. ‘An employer should give the worker a minimum of 24 hours’ notice for the excess work to be performed. Similarly, the worker should provide a 24 hour notice at least, informing the employer that he would not be able perform the additional hours of work required, Disclosure of Information Disclosure is concerned with the act of revealing an information. For example, according to the Ministry of Civil Service Affairs & Administrative Reforms; code of ethies ,‘public officers may disclose official information or documents acquired in the course of their duties only when they are required to do so by law or when they have the proper authority to do so. In these cases, their comments should be confined to factual information. They should not give an opinion on official policy or practice. They should not seek to influence or frustrate Labour Law and Industrial Relations | 21the policies, decisions or actions of government by the unauthorised, improper or premature disclosure of any information or documents to which they have had access as public officers, Similarly, workers are bided by a close in their contract which prevents them to share any information that they see or come across at work. A Confidentiality Agreement is signed to ensure that no information is revealed. It is a contract through which the parties agree not to disclose information covered by the agreement. Lawful actions can be taken against the worker following the signature of a Confidentiality Agreement if he disclose information with regards to the company. Disclosure of information can however be of legal requirement. For instance, in UK, The Employment Protection Act 1975 includes provisions relating to the general duty of employers to disclose information to trade union. These information will be used for the purposes of collective bargaining. However, this law is not yet operational in Mauritius. Reference can be drawn from the following case: “The employer informed its employees of its intention to retrench eight employees as it had decided to close a branch. It requested a meeting with the union in order to furnish it with all relevant information relating to the proposed retrenchment. However, the trade union requested the agenda of the proposed meeting and claimed that the employer's decision had been taken without consulting them and without a disclosure of information. The employer replied that the meeting would focus on the selection criteria to be used. The union did not attend the proposed meeting, but two meetings were held between the respondent and shop stewards wherein the possibility of voluntary retrenchments was proposed and rejected. Later on, the union indicated its willingness to consult but requested an extensive list of information such as bank statements, and financial documents. The union also indicated that the proposed retrenchment would not proceed until all the information had been released to it. However, the respondent notified employees likely to be affected of their impending retrenchment. The union referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) alleging the respondent's Labour Law and Industrial Relations | 22failure to disclose relevant information, and applied for an interdict at the Labour Court. The Court found that the respondent had disclosed all the relevant information regarding the matter expressly referred to in the LRA. Therefore, the Court held that the respondent had complied with section 189 of the LRA. It also held that the fact that the applicant had referred the matter to the CCMA alleging non-disclosure of information was not in itself a sufficient ground to justify an interdict.” Collective Bargaining Collective bargaining is a fundamental principle and right at work. Collective bargaining is also considered an enabling right. Collective bargaining is a key means through which employers and their organisations and trade unions can establish fair wages and working conditions. It also provides the basis for sound labour relations. Collective bargaining “extends to all negotiations, which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, on the other, for: a) determining working conditions and terms of employment; and/or b) regulating relations between employers and workers; and/or ©) regulating relations between employers or their organisations and a workers’ organisation or workers’ organisations”. (This definition comes from Article 2 of the Collective Bargaining Convention, 1981 (No. 154)). The objective of these negotiations is to arrive at a collective agreement that regulates terms and conditions of employment. Collective agreements may also address the rights and responsibilities of the parties thus ensuring harmonious and productive indus Enhancing the ies and workplaces. inclusiveness of collective bargaining and collective agreements is a key means for reducing inequalit and extending labour protection. Benefits of Collective Bargaining 1) Itcan contribute to improvements in wages and working conditions, as well as equality, 2) Ithas also been instrumental in facilitating the adaptability of enterprises and economies during an economic crisis. Labour Law and Industrial Relations | 233) When effective, collective bargaining can help build trust and mutual respect between employers, workers and their organisations, and contribute to stable and productive labour relations. 4) The effective recognition of the right to collective bargaining enables the development of a form of regulation that complements statutory regulation, e” and resolve grievances, which in tum 5) Provides a channel through which to “voi enhances worker well-being. Collective bargaining in Mauritius is governed by the Employment Relations Act (2008). According to Section 35 of this act, the Code of Practice set out in the Fourth Schedule shall provide practical guidance for the promotion of good employment relations, for the grant of negotiating rights and as well as assisting employers and trade unions to bargain effectively. Moreover, this piece of legislation stipulates very clearly the procedures that have to be followed by both the employer and the recognised trade unions when they engage into collective bargaining. It also provides for dispute settlement procedures, for example the reporting of labour disputes to the Commission of Conciliation and Mediation or to the Employment Relations Tribunal for voluntary arbitration, To conclude, collective bargaining remains the most prevalent system that governs the employment relationship between employers and employees in virtually all countries, both developed and developing countries. Mauritius is also @ signatory of the ILO Convention No. 98 on collective bargaining. 154 countries, including Mauritius have ratified the Convention No. 98 on right to organise and bargain collectively. Article 4 of this Convention provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employees, organisations and workers, with a view to the regulation of terms and conditions of employment by means of collective agreements, Sole Bargaining Agent A sole bargaining agent means a trade union, or a joint negotiating panel ( Representatives of 2 or more trade unions having the right to participate in collective bargaining) having negotiating Labour Law and Industrial Relations | 24rights (o bargain collectively on behalf of the workers in the bargaining unit ( employees from same or not same employers on whose behalf a collective agreement has been made). ‘The employer recognises the bargaining agent as the sole and exclusive representative of those employed in classifications within the bargaining unit for purposes of bargaining with the employer regarding terms and conditions of employment and representing the interests of those employees consistent with the terms of this agreement, Classifications and job titles mutually agreed to be within the bargaining unit are in the attached addendum designated by the appropriate university unit. The term employee as it is used in this agreement shall mean a bargaining unit employee." The International Garment Workers Union, for example, might act as the bargaining agent for all seamstresses employed at a particular dress factory. Closed Shop Closed shop is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times in order to remain employed. Such an agreement is arranged according to the terms of a labour contract. By the 1930s the closed shop had become a commonly negotiated agreement meant to protect labour organisations. The legal status of closed shop agreements varies widely from country to country. It is banned in some nations; it is regulated by law in some other nations. For examples, ‘A. Although closed shops were declared illegal in the United States under the Taft-Hartley Act of 1947, they continue to exist in practice; however, they are not written into contracts. They are used. by employers who depend on unions for hiring or by industries that employ workers for only a short period of time (example, dockworkers and construction workers). In such cases employers might seek job applicants by contacting union hiring halls, but they remain fiee to recruit elsewhere. B. In Australia all forms of closed shops in the Commonwealth are strictly illegal under Workplace Relations Act 1996. There was an attempt by the Howard Government to change the definition of ‘what constituted a closed shop under the Workplace Relations Legislation Amendment (More Jobs, More Pay) Bill 1999, However the bill was subsequently defeated, Labour Law and Industrial Relations | 25,C. In Canada, The status of closed shops varies from province to province within Canada. The ‘Supreme Court has ruled that, while Section Two of the Charter of Rights and Freedoms guaranteed both the freedom to associate and the freedom not to associate, employees in a work-environment largely dominated by a union were beneficiaries of union policies, and as such should pay union fees, regardle: of membership status. However, religious and conscientious objectors were allowed the option of paying the amount to a registered charity instead. Dead Lock during Negotiation Deadlock is a state of inaction resulting from opposition or lack of compromise, It is a standstill resulting from the opposition of two unrelenting forces or factions, Neither side is willing to give in at all nor is an agreement being made. It is a normal risk in bargaining, It is a legitimate test of the balance of power and resolve of opposing parties. It is not to be feared or shunned as a tactic. And if properly handed, it is merely one stage of the bargaining process. The most common causes for deadlock are: parties become entrenched one party's bottom line has been exposed too early and is seen by the other as being ‘unreasonable * emotional blockage - matters of principle, reputations to maintain or even make + team dynamics - deadlock is more common in team negotiations because the risk is syndicated * Tactical deadlock. ‘+ Own natural reaction when someone pushed one of your buttons. Natural reactions occur, such as “striking back.” ‘* Negative emotions, such as defensiveness, fear, suspicions, and hostility. ‘* When a proposal has been made but the other parties can’t see the benefits of agreeing to it. Techniques for dealing with deadlocks are to change the setting with fresh perspectives, change the negotiator , by providing additional information, take a break, look at all options, revisit priorities or even let it go. Labour Law and Industrial Relations | 26Mediation Mediation is an effective way of resolving disputes without the need to go to court, It involves an independent third party - a mediator - who helps both sides come to an agreement. Mediation is a flexible process that can be used to settle disputes in a whole range of situations such as: * consumer disputes contract disputes © family disputes ‘© neighbourhood disputes When a couple files for divorce, disputes often arise over the division of marital property, as well as care and custody of the children, In many cases, each spouse hires an attorney to help them hash things out in court, An alternative option that can save both parties a great deal of time and money is divorce mediation, Such mediation takes place in the same manner as other civil mediation, with the mediator helping the parties arrive at a solution based on their own ideas of what is fair, rather than leaving the decisions up to a judge. In addition to saving time and money, ‘mediation often helps the couple improve communication between them, which many find helps in the future, especially if they have children together. Mediation is confidential, and gives each spouse a greater feeling of control over the outcome of their case compared to litigation. Mediation is increasingly being used to resolve disputes in many areas of life. It is one of the processes within the alternative dispute resolution (ADR) spectrum and involves a neutral third party bringing two sides together with the aim of reaching a mutual agreement, Mediation is referred as an effective tool for resolving disputes between an employer and an employee because employment disputes are often more emotionally charged than a typical commercial dispute, given that the employee typically believes the employer acted unjustly; and the employer believes itself blameless and unfairly attacked, When parties are compelled to mediate, they must participate in good faith and bring an appropriate party representative with knowledge of the relevant facts and full settlement authority Labour Law and Industrial Relations | 27to the mediation, Mediators are skilled at facilitating discussions between the parties and helping them to identify issues and potential solutions. The aim of mediation is for the parties to resolve the matter by agreement, Mediators are independent people committed to the process of problem resolution, The mediator’s role is to; ‘+ help people find the best way to resolve their problems ‘encourage parties to identify the real issues * identify points of agreement between the two parties ‘+ help people find a way through their problem that may not seem immediately apparent ‘* work with people to find answers that reflect good faith and common sense * work with parties to seck a resolution that allows both parties to move on. + make decisions (at the parties’ request) ‘+ provide information to unions, to community groups and advisors, to employer organisations or employment law seminars, Workplace Mediation “Workplace Mediation is a structured process whereby an impartial mediator facilitates communication between disputants in order for them to clarify the underlying issues and to come ‘up with agreements on how to improve the working relationship in the future.” Mediation is being used successfully in helping organisations resolve everything from employee-employer disputes to industrial conflicts. It works because most employees in conflict (and in this case, their employers as well) are motivated to reach an agreement without taking the fight to another level, (such as court), which inevitably brings with it much greater cost, much greater animosity, damaged relationships, and the risk of embarrassing publie scrutiny. Mediation in the workplace deals with conflict in the most sensible and effective way, while being private and inexpensive. Essential services Essential services may refer to a class of occupation that have been legislated by a government to have special restrictions in regard to labour actions, such as not being allowed to legally strike. Labour Law and Industrial Relations | 28What is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential services may become essential if'a strike lasts beyond a certain time or extends a certain scope, thus endangering the life, personal safety or health of the whole or part of the population, In other words, it can be said that essential services are those service industries that cannot indulge in a legal strike as it may affect or endangered life. In reference to The Insolvency Act of 2009, section 136 “essential services” means — (a) the retail supply of electricity (b) the supply of water; or (©) telecommunications services; “telecommunications services” means the conveyance from one device to another by a line, radio frequency, satellite transmission or other medium of a sign, signal, impulse, writing, image, sound, instruction, information or intelligence of any nature, whether or not for the information of a person using the deviee Legal representatives As per the dictionary a legal representative is a personal representative having legal status or one that represents another (as a deceased or incompetent person): one that succeeds to the interest in property of a person living or corporate. A legal representative is, put simply, a natural person appointed to act on the company’s behalf. Article 38 of the General Principles of Civil Law of the People’s Republic of China defines the role as the “responsible person who performs the duties and powers on behalf of a legal person in accordance with the law or the constituent documents of the legal person”. Under the Company Law of the People’s Republic of China (the ‘Company Law’), all businesses established in China must have a legal representative. The legal representative of a company may be the chairman of its board of directors, an executive director or its general manager, as provided by the company’s articles of association, Labour Law and Industrial Relations | 29In Mauritius, employees also may have their legal representative in case of serious issues. As per The Employee Rights Act, Section 38 Protection against termination (subsection 4), itis said that “Where the opportunity afforded to a worker to answer any charge made against him under subsection 2(a)(ii) , 2(b)(i) or 3(b) is the subject of an oral hearing, he may have the as ofa representative of his trade union or his legal representative, or both; or an officer, where he is not assisted as specified in paragraph.” Employee may seek advice from legal representative who provide employment law advice in offices that deliver civil law advice. This will help the employees to fight their case in a fair manner. If an employee believes that he was unfairly terminated or discriminated, he can sue the employer with the help and advice of the legal representative. Thus, we can say that legal representations allow either employer or employee to fight their case in courts to get justice Picketing Section 80 of the Employment Relations Act 2008 refers to picketing. Picketing is a form of strike mainly used by trade unionists. It is generally done by any worker or workers standing in front of the company they work and trying to discourage people from going into the organisation (crossing the picket line, (Wikipedia 2016)). However, picketing is practised without any violence. It aims primarily at getting people’s attention, Moreover, picketing has as objective to pressurize the top management of their organisation in order to get what they want. This is done by preventing the organisation from operating normally by projecting a negative image of the business to customers and by stopping current workers from entering the building. There is, therefore not only a shortage of labour but also loss of the market share. From Section 80 of the Employment Relations Act talking about picketing, the law states that: 1) Any worker or a group of workers or an officer or a negotiator may, in furtherance of a lawful strike, be present at the entrance of a workplace for the purpose of peacefillly communicating information or peacefully persuading any worker to participate in the strike. Labour Law and Industrial Relations | 302) No employer shall deny any worker or a group of workers or an officer or a negotiator the right to picketing under subsection (1). This means that picketing is a legal act whether it is done by an individual employee, a group of, employees, any officer or any negotiator provided that there is no violence and that information is communicated “peacefully”. Similarly, persuasion should be done serenely. Employers have no right to stop them from doing so. Case Example Labour—Liability of union for tort—Ilegal threats to picket company employing independent contractor—Whether contractor has cause of action against union—The Labour Relations Act, 1954 (B.C), ¢. 17, ss. 4, 5, 6, 7—The Trade-unions Act, R.S.B.C. 1948, ¢. 342. The plaintiff, an independent contractor, operated a trucking business. He drove one truck and hired drivers to operate the others. The firm which for years had engaged his services entered into a closed shop agreement with the defendant, a trade union within the definition of that expression in the Labour Relations Act. The plaintiff agreed to hire only union members, but refused to join the union himself, presumably because he could not lawfully do so. The union threatened to put his truck off the job and to picket the firm. Finally, the firm discontinued doing business with him. The trial judge maintained the action for damages and granted an injunction restraining the union from interfering with the plaintiff in the operation of his business. This judgment was affirmed by the Court of Appeal. The union appealed to this Court and contended that it was not a legal entity which could be found liable in tort, and that the evidence did not disclose a cause of action. Strike The origin of strike originates from the days of slavery where men had no right to withdraw labour. However, those who were free were able to withdraw labour, Those worker engaged into a voluntary agreement with someone else in with whom they agreed to carry out some specific work in return for an amount of pay. When disagreement between them oceurs they had the right to freely withdraw workers. Therefore, those withdrawn workers together with the others would go on strike. Yet the Labour Law and Industrial Relations | 31question is “what is strike?” The dictionary defines strike as a refusal to work organised by a body of employees as a form of protest, typically in an attempt to gain a concession or concessions from their employer.” ‘The Mauritian constitution is not really in favour of strike. Strike is considered as a breach of contract, between the employer and employee. In some cases it is however acceptable as stipulated in section 76 (2) (a &b). “a worker shalll have the right to strike where — (a) the strike relates to a major health and safety issue that may jeopardise the life and security of any worker, unless the worker has been transferred forthwith to another workplace which is safe and without risks to health; or (b) more than 50 per cent of the workers of an enterprise have not been paid remuneration within the prescribed period”. The result is that workers are then unfairly dismissed without any compensation, may lose redundancy payments, may be disqualified from unemployment benefit, and all without remedy. This is so because employees have to abide to the law such as the limitation of right to strike or recourse to lock out section 77 of employment right act. An example of a strike is “On Ist September 1938, a general strike began in Port Louis that lasted for around 22 days. Between 2,500 and 3,000 Dockers participated in this well-organised work stoppage which paralyzed Port Louis harbor as well as the island’s economy. On 6th September, the strike was declared to be illegal by a local magistrate and the Dockers were ordered back to work which they flatly refused.” As the strike was made illegal the Dockers loss their case and soon they were replace by machinery and almost all of them lose their job. Therefore, if the strike was made legal as like European, those workers would have kept their job and would have been treated more fairly. Lock-out Taking reference from the interpretation part of the Employment Relations Act 2008, "lock out" means any action taken by an employer whether or not in contemplation or furtherance ofa labour dispute, and whether or not the employer is a party to a dispute, which consists in — (a) the exclusion of a group of workers from a place of employment; (2) the suspension of work in a place of employment; or Labour Law and Industrial Relations | 32(6) the collective, simultaneous or otherwise connected termination or suspension of employment of a group of workers. Thus, it means that lock out is a measure taken by management when either there has been a rejection of a bunch of employees from work or a temporary interruption of work process in the organisation. This may be whether there is a case of disagreement among workers or not or even if the latter himself is involved in the disagreement or not. It is the action of preventing employees from entering the company’s site by shutting the door and locking them out. In extreme cases, ‘management even change the lock and hire bodyguards or security officer to make sure nobody enters the organisation. Management normally choose to use the lock out method when they want to force workers to accept the changes in their conditions of work. Case Example Workers locked out because they want a collective agreement Fourteen Service Technicians at electrical retailer Radio Rentals have been locked out of their Prospect (SA) workplace for one month without pay from 8 September 2006 The workers are seeking a collective agreement and went on strike for four hours in pursuit of their claim. Their employer is instead insisting they sign AWA individual contracts that would remove important job entitlements and has responded to the four hour strike by deciding to lock-out the workers without pay for one month Australian Manufacturing Workers Union assistant national secretary Glenn Thompson said the workers had not received a pay rise in three years. Alternate Dispute Resolution Any method of resolving disputes other than by litigation, abbreviated as ADR. Public courts may be asked to review the validity of ADR methods, but they will rarely overturn ADR decisions Labour Law and Industrial Relations | 33,and awards if the disputing parties formed a valid contract to abide by them. Arbitration and mediation are the two major forms of ADR. Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. While the two most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. It is the pr minent mode of dispute resolution. Negotiation allows the parties to meet in order to settle a dispute. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution. Mediation is also an informal alternative to litigation. Mediators are individuals trained in negotiations, which bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject. Mediation is used for a wide gamut of case-types ranging from juvenile felonies to federal government negotiations with Native American Indian tribes. Mediation has also become a significant method for resolving disputes between investors, and their stock brokers. Arbitration is simplified version of a trial involving limited discovery and simplified rules of evidence. The arbitration is headed and decided by an arbitral panel. To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award. Opinions are not public record. Labour Law and Industrial Relations | 34Conciliation The process of adjusting or settling disputes in a friendly manner through extra judicial ‘means.Conciliation means bringingtwo opposing sides together to reach a compromise in an attempt to avoid taking a case to In the past, some states have had bureaus of conciliation for use in Divorce proceedings, Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation, The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties’ legal positions, but also thei ; commercial, financial and / or personal interests. Like in mediation proceedings, the ultimate decision to agree on the settlement remains with the parties. Unfair Dismissal Unfair dismissal is termination of contract of employment for unfair or inadmissible reasons. When challenged in a court, the employer must establish that the dismissal was based on a substantial reason such as gross misconduct, lack of qualification, incapability to perform assigned duties, or redundaney. In such cases the courts usually take the employees’ statutory rights into consideration, * asked for flexible working * refused to give up your working time rights - example to take rest breaks * resigned and gave the correct notice period Labour Law and Industrial Relations | 35,* joined a trade union * took part in legal industrial action that lasted 12 weeks or less * needed time off for jury service + applied for maternity, patemity and adoption leave ‘© were on any matemity, paternity and adoption leave you're entitled to + tried to enforce your right to receive Working Tax Credits © exposed wrongdoing in the workplace (whistle blowing) ‘© were forced to retire (known as ‘compulsory retirement’) Compulsory retirement is not allowed unless your employer can objectively justify it, but you can challenge it at an employment tribunal Re-instatement Itis the process of re-establishing the status of a person, company or law. For instance in regards to insurance, reinstatement allows a previously terminated policy to resume active coverage. Depending on the circumstance of the termination, such as failure to pay the premium, the insured person may be required to compensate the insurer before reinstatement occurs. Under specified circumstances, former employees may be reinstated to fill vacancies in the same position, or one of like pay and status, held immediately prior to their separation, Reinstatement restores any benefits and service credits accrued at the time of separation. Employees who may receive reinstatement privileges are: a) those individuals who have been involved in a temporary or seasonal layoff without fault on their part; b) those individuals who have been on an approved leave of absence without pay and are retumning to work; ©) those individuals who have been discharged and the discharge are not upheld. Labour Law and Industrial Relations | 36Re-employment Re-employment implies termination of the previous employment contract and the creation of a new employment contract.104 Reinstatement can be distinguished from re-employment in that reinstatement restores the original contract whereas re-employment creates a new contract. 105 In NEWU v John & another, 106 when the court was asked to review an award for re-employment as opposed to tatement, the Labour Court held that it was within the powers of the commissioner to order either reinstatement or re-employment or compensation. Re-employment usually requires that the employee be placed in a position that they were before the dismissal or in other “reasonably suitable” work. Voluntary arbitration Voluntary arbitration is arbitration by the agreement of parties. It is a binding adversarial dispute resolution process in which the disputing parties choose one or more arbitrators to hear their disagreement and to give a final decision after a hearing. Some of the important elements in voluntary arbitration are: a, Voluntary submission of dispute to an arbitrator b. Subsequent attendance of witnesses and investigations. Voluntary arbitration may be specifically needed for disputes arising under agreements. Voluntary arbitration means that the two opposing parties, unable to compromise their differences by themselves agree to submit the conflict to an impartial authority, whose decisions they are ready to accept. Advantages ‘+ The parties can choose their own arbitrator. They can choose people who have the appropriate degree of expertise in the matter concerned. ‘© The issues are not made public and can remain confidential. Labour Law and Industrial Relations | 37advantage ‘© If the arbitration is binding, the parties renounce their rights to access the courts and to have a judge or jury decide the case. ‘© If there are many arbitrators for a case, it may be difficult to find dates where everyone is available, thus leading to delays. Employment Relations The term ‘employee relations! refers to a company's efforts to manage relationships between employers and employees. An effective employee relations program starts with clearly written policies which describe the company’s philosophy, rules, and procedures for addressing employee-related matters and resolving problems in the workplace. Employee relations programs are typically part of a human resource strategy designed to ensure the most effective use of people to accomplish the organisation's mission, It focuses on issues affecting employees, such as pay and benefits, supporting work-life balance, and safe working conditions. Many companies have one or more employee relations representatives, people who work in the human resource department to ensure that company policies are followed fairly and consistently. Employee relations representatives work with employees and supervisors to resolve problems and address concems. Perhaps the most important element for successful relationships with employees is communication. Open lines of communication can be informal, such as day-to-day interactions between employees and supervisors, or formal mechanisms for employee feedback, such as workplace satisfaction surveys or grievance and appeals procedures. Grievances and appeals are processes that allow employees to challenge management decisions or labour issues through a formal dispute resolution process. Labour Law and Industrial Relations | 38Grievances and appeals are processes that allow employees to challenge management decisions or labour issues through a formal dispute resolution process. The responsibility for good ‘management and employee relations eventually rest with the CEO of an organisation. The Human Resource department provides guidance in the handling of conflicts and grievances and is responsible for implementing any action to minimise the intensification of conflicts. Employment Rights Employment rights encompasses the various rights which employees are legally entitled to in the workplace, such as: freedom from discrimination; rights related to wage; taking leave for births, or serious health conditions the employee is dealing with; the right to unionise; freedom from disciplinary action or termination; right of advance notice of plant closings or mass layoffs; health and safety rights in the workplace; rights of disabled workers; privacy in the workplace; workers” compensation; unemployment benefits; and much more. Not all employees have the same rights. For example, private employees do not have all the same constitutional rights that public employees, who work for the government, do. Employment rights govern the rights and duties between employers and workers. These rules are primarily designed to keep workers safe and make sure they are treated fairly, although laws are in place to protect employers" interests as well. A particular employment relationship may also be governed by a contract. Shift Work Shift work takes place on a schedule outside the traditional 9 am — 5 pm day. It can involve evening or night shifts, early morning shifts, and rotating shifts. Many industries rely heavily on shift work, and millions of people work in jobs that require shift schedules, as it is that type of flexibility which a workplace provides its employees with, so as its effectiveness and efficiency increase, Labour Law and Industrial Relations | 39According to the Bureau of Labour Statistics, roughly 15% of full-time wage and salary workers in the U.S. work on shifts outside the traditional daytime schedule, In addition, most shift workers are in service occupations, like protective service (such as police and firefighters), food preparation and serving, healthcare, and transportation. When asked, staffs state many reasons for working on shift schedules. For example: * Shift work is the “nature of the job”. * Shift work allows for better arrangements for family or childcare, * Shift work is the only option available. * Shift work is a personal preference. Thus shift work is vital in many industries, and these firms rely on shift workers to provide important services off-hours. However, shift work can also be very disruptive to a person’s health, and wellbeing. In a 2008 National Sleep Foundation poll, only 63% of shift workers (versus 89% of non-shift workers workers) said their work schedule allows them to get enough sleep. They were significantly more likely to sleep fewer than 6 hours on workdays, to work more hours per week on average Nevertheless, not all shift workers suffer from sleep issues. But, approximately 10% of night and rotating shift workers are thought to have a sleep disorder known as shift work disorder. Shift work is also linked to additional problems with physical and mental health, performance, and safety. It is important that shift workers learn specific techniques for improving sleep and managing schedules, to allow for the best sleep and health possible. For that reason, there is law concerning the shift work in Mauritius, which is stated in the employment rights act 2008 section 14A. Section 14A - Shift Work (1) An employer shall not, without a worker’s consent, require the worker on shift work — a) to work more than 8 hours in a day; Labour Law and Industrial Relations | 40b)_ to perform night work on more than 4 consecutive nights, except in such sector or industry as may be prescribed. (2) Shift work shall be scheduled on a monthly basis. (3) The monthly schedule of duty worked out on a roster basis indicating the date and time at which a worker shall attend duty shall be handed over to the worker and posted up in a conspicuous place at the place of work at least one week before the schedule is due to take effect. (4) Notwithstanding subsection (1), a worker on shift work may work in excess of the stipulated hours, without added remuneration, where ~ a) the worker and the employer agree on the number of hours of work to be performed in the shift; and b) the average number of hours of shift work in a fortnight does not exceed 90 hours or such fewer number of hours as may be specified in an agreement. (5) Every worker shall be paid an allowance of 10 per cent of his basic wage in addition to his, normal day’s wage for work performed during night shift, (6) Notwithstanding subsection (1), where a female worker who may be required to perform night work produces a medical certificate certifying that she is or was pregnant, her employer shall not require her to perform night work during a period of at least 8 weeks before, and after, confinement. Amended by Act No.6 of 2013 ‘A worker shall work more than 8 hours per day only if he is consent of doing so. He should also not perform night work for more than 4 consecutive days. It is obligatory for the shift work to be arranged on a monthly basis whereby, the date and time should be indicated over the worker at least 1 week before the schedule comes into process. A worker may work on shift or in excess of the required hours without any additional payment, in situation that the 2 parties, the employer and employee agreed on the number of working hours and number of hours of shift work must not exceed 45 hours per week During night shift, a worker shall be paid an allowance of 10% of his basic salary. Thus the wage’s ratio will be 1.1 to the normal day’s wage. That is normal day’s wage multiply by 1.1 Labour Law and Industrial Relations | 41As for a female worker, whether she is pregnant or not, shall not be placed on night shift 8 weeks before and after confinement provided that the latter has a valid medical certific Continuous employment Many of your employment rights only apply if you have a minimum period of continuous employment. Continuous employment usually defines working for the same employer without a break; however there are exceptions to this. For other, if an employee works for you without a break — or with short breaks — from employment under set conditions, it is classified as continuous employment”. Thus to avoid confusion, in Mauritius, the Employment Rights Act 2008 stated clearly that “continuous employment” means the employment of a worker under an agreement or under more than one agreement where the interval between an agreement and the next does not exceed 28 days. Continuous service is worked out in months and years, starting with the date you began work for the employer. If there is a break in your employment then normally none of the weeks or months before that date will count as continuous service. For example, if an employee work in a company for five years and then take a job with another business for six months before returning to your original employer. Then the continuous employment would not include the five years that the employee previously worked for the company. Conversely, absence from work due to any of the following counts as continuous employment provided the employment contract continues throughout sicknes , maternity leave, paternity leave, adoption leave, parental leave, temporary lay-off, holiday breaks and other time off allowed by your contract of employment. Yet, there are some circumstances where short beaks in your employment contract can still be counted as continuous employment, For instance there are: Labour Law and Industrial Relations | 42Weeks when there is no contract Ifa worker does not have a contract of employment with his employer for a number of weeks, the time still could count towards continuous employment, if the worker is away from work sick or injured and he/she is then taken back on as an employee within 26 weeks of the contract being terminated, or cancelled or work stops temporarily, or the worker is away in circumstances that his/her employer regards as continuous employment because of an arrangement or custom in the workplace, 2. Reinstatement after an unfair dismissal claim Following to an unfair dismissal claim and reinstatement, the weeks which fall between the date a worker was dismissed and the date that he/she is reinstated, count towards his/her continuous employment. 3. Strike action During industrial or strike action the continuous employment is treated as ‘postponed’. This means, that the period during which the worker was on strike, will not count towards his/her continuous employment, but it does not break the continuity of his period of employment. Instead the starting date is treated as being postponed for that number of days. For example, if he/she started with a new employer on 1 February and over the course of a year he/she spent five days on strike, his/her starting date for continuous employment would be 6 February. 4. Overseas employment Working abroad generally counts towards the period of continuous employment. If'an employee is trying to work out how much redundancy pay he/she could be entitled to, overseas employment may count, He/she will need to have been classed as an employed eamer for social security purposes during that week. Labour Law and Industrial Relations | 43,5. Time with a previous employer If a worker change employer that normally counts as a break in your employment, However, there are c« in count towards the continuous tain situations where time with a previous employer: employment with the current employer. These are if the business he/she work for is transferred to another employer, or if by, or under, any statutory provision one corporate body takes over from another as your employer, or if the existing employer dies and their personal representatives or trustees keep the worker in employment, or if there is a change in the partners personal representatives or trustees who employ the employee, or if the worker moves from one employer to another ‘associated’ employer, meaning one of the companies is part of or related to the other company, or if the employee is employed by a health service employer and he/she moves to another health service employer while undergoing training. Case scenario 1 Koby has been a mechanic at S.B.A Auto Repairs for six and a half years. He gets offered a job by a new repair shop which opens for business down the road. He accepts the offer and resigns from S.B.A. However, after just one month, Koby realizes that he has made a mistake. He is required to work really long hours with minimum wages. He asks for his old job back at $.B.A. Auto Repairs and they welcome him back. In this ease, although Koby was only gone for one month, the fact that he resigned means his continuous service is broken, Case Scenario 2 ilvie is employed as a dishwasher at the Happy Valley Coffée House. Her employment is terminated as the employer decides he no longer needs a dishwasher, because the kitchen-hand should be able to do those duties as well as his own. After one and a half months, the employer realises that it just isnt working and that in fact Silvie did a whole more than just dishwashing, and asks her to come back. Labour Law and Industrial Relations | 44As Si re-employed within 3 months, this break in the employment period will not break her continuity of employment. Define a job contract All employees have an employment contract with their employer. A contract is an agreement that sets out an employee’s: + employment conditions . rights . responsibilities © duties ‘These are called the ‘terms’ of the contract, According to the general provisions of the Employment Contracts Act of International Labour Office; section 1, the definition of a contract of employment is as follows. (On the basis of an employment contract a natural person (employee) does work for another person (employer) in subordination to the management and supervision of the employer. The employer remunerates the employee for such work. (2) If'a person does work for another person which, according to the circumstances, can be expected to be done only for remuneration, it is presumed to be an employment contract. (3) The provisions concerning authorization agreements apply to employment contracts, unless otherwise provided by this Act. (4) The provisions concerning employment contracts do not apply to contracts where the person obligated to perform the work is to a significant extent independent in choosing the manner, time and place of performance of the work. (3) The provisions concerning employment contracts do not apply to the contracts of members of directing bodies of legal persons or directors of branches of foreign companies. Labour Law and Industrial Relations | 45Accepting a contract: As soon as someone accepts a job offer they have a contract wi their employer. An employment contract doesn’t have to be written down though a written one is essential and can be held as evidence. Contract terms: The legal parts of a contract are known as ‘terms’. An employer should make clear which parts of a contract are legally binding. Contract terms could be: © ina written contract, or similar document like a written statement of employment * verbally agreed . in an employee handbook or on a company notice board ‘* _ inan offer letter from the employer * required by law (example an employer must pay employees at least the National Minimum Wage) . in collective agreements - negotiated agreements between employers and trade unions or staff associations © implied terms - automatically part of a contract even if they're not written down Implied term: Ifthere’s nothing clearly agreed between you and your employer about a particular issue, it may be covered by an implied term - for example: * employees not stealing from their employer * your employer providing a safe and secure working environment © alegal requirement like the right to sick leaves, matemity leaves, patemity leaves amongst others * Something necessary to do the job like a driver having a valid license + Something that’s been done regularly in a company over a long time like paying a Christmas bonus, Labour Law and Industrial Relations | 46Collective agreements: An employer may have an agreement with employees’ representatives (from trade unions or staff associations) that allows negotiations of terms and conditions like pay or working hours, This is called a collective agreement. The terms of the agreement could include: ‘© how negotiations will be organised. © who will represent employees. ‘© which employees are covered by the agreement. ‘* which terms and conditions the agreement will cover. What a written statement must include: ‘A written statement can be made up of more than one document (if the employer gives employees different sections of their statement at different times). If this does happen, one of the documents (called the ‘principal statement’) must include at least: © the business's name. ‘the employee’s name, job title or a description of work and start date. + ia previous job counts towards a period of continuous employment, the date the period started. © how much and how often an employee will get paid. ‘© hours of work (and if employees will have to work Sundays, nights or overtime. ‘© holiday entitlement (and if that includes public holidays). ‘where an employee will be working and whether they might have to relocate. «if an employee works in different places, where these will be and what the employer's address is, As well as the principal statement, a written statement must also contain information about: + how long a temporary job is expected to last. the end date of a fixed-term contract # notice periods. Labour Law and Industrial Relations | 47«collective agreements, + Pensions, «who to go to with a grievance. ‘© how to complain about how a grievance is handled ‘* how to complain about a disciplinary or dismissal decision, What a written statement doesn’t need to include: ‘The written statement doesn’t need to cover the following (but it must say where the information can be found): * sick pay and procedures. © disciplinary and dismissal procedures. + grievance procedures. In Norther Ireland, a written statement must explain what the disciplinary rules and procedures are. Working abro: If an employee has to work abroad for more than a month, their employer must state: * how long they'll be abroad. ‘+ what curreney they'll be paid in. ‘+ what additional pay or benefits they'll get. * terms relating to their return to the home country. This information can be given to the employee in a separate document, Promotion The concept of promotion and demotion can be referred to the context of ‘unfair labour disputes’ as per the South African Law. Promotion is based on performance related issues of employees. Labour Law and Industrial Relations | 48Prom yn means the offer by an employer and acceptance by an employee of a better or more highly regarded position with the same employer in terms of improved pay and/or improved conditions in return for the carrying out of a more responsible set of duties or more onerous tasks. Promotion or demotion of an employee may create a new contract of employment, Promotion and demotion both have the effect of fundamentally altering employment contracts so that, in many cases, provisions relating to such issues as notice of termination would have to be revised. Failure to adjust these and other provisions in any written contract will result in the written contract being, at least in part, irrelevant to the employment of the employee. Employers commonly use one of two systems to promote employees: 1. level progression, whereby employees are evaluated on a regular basis and progress to a higher level within the parameters of the job in question; and 2. the application-for-vacancies system, whereby vacancies are advertised, and both current employees and extemal applicants are invited to apply for posts. The second system is problematic. The Commission for Conciliation, Mediation and Arbitration and the courts have held that it is not promotion at all, as the employee is nothing other than a job applicant. For example in the case of Mashegoane v University of the North, the dispute was whether the university's refusal to appoint a lecturer to the position of Dean of a faculty involved a promotion. The legislation governing the university provided that Deans were appointed by the Senate acting on the recommendation of the Faculty Board. The university argued * that the position of the Dean was not applied for; and that it was not a promotion; but © that it was a nomination. Once the court established that the applicant was a current employee, it found that his salary would have remained the same, but that he would have received a Dean's allowance and would have had a car at his disposal; these were the only benefits. His status would have been considerably elevated, He would have had more responsibilities, authority and powers. In light of this, the appointment amounted to a promotion, Labour Law and Industrial Relations | 49Similarly, as far as the second system for promoting employees is concemed in the Mauritian context, it can be seen that in the government sector, employees have to make application for the post through the online system on the official site of ‘www.gov.mu’ as existing employees (as job applicants) instead of climbing the hierarchical ladder, they have to be selected again and go through the interview process as external candidates do, To add on, other factors which are taken into account during a promotion include difference in remuneration levels, fringe benefits, status, levels of responsibility or authority or power, and the level of job security. Hence, an employer may commit an unfair labour practice through unfair conduct relating to the provision of benefits. Therefore employers must make sure that they are abiding by the law while promoting employees and ensure that fair labour practices are primed. Labour Dispute The purpose of the Labour Law is to ensure the fair and rapid settlement of labour disputes, determine labour dispute settlement bodies and the procedures for settlement of labour disputes. A labour dispute shall be any differences of opinions arising from employment legal relations or related to employment legal relations between an employee, employees (a group of employees) oor representatives of employees and an employer, employers (a group of employers), an organisation of employers or an association of such organisations, or the administrative authority of the sector. Depending on the object of a dispute and persons involved, labour disputes shall be divided into individual disputes regarding rights, collective disputes regarding rights and collective disputes regarding interests. An individual dispute regarding rights shall be such differences of opinion between an employee or employees (a group of employees) and an employer that arise by concluding, altering, ‘terminating or fulfilling an employment contract, as well as by applying or interpreting the provisions of regulatory enactments, the provisions of a collective labour contract or working procedure regulations. Labour Law and Industrial Relations | 50Moreover, a collective dispute regarding rights shall be such differences of opinions between employees (a group of employees) or representatives of employees and an employer, employers (a group of employers), an organisation of employers or an association of such organisations, or an administrative authority of the sector that arise in concluding, altering, terminating or fulfilling an employment contract, as well as in applying or interpreting provisions of regulatory enactments, provisions of a collective labour contract or working procedure regulations. Labor disputes are at times accompanied by strikes, picketing, slowdowns, boycotts and lockouts. The jurisdictional strike seeks the concession at the expense of another union, or group of employees acting in concert. The dispute is really then between the two unions or groups of employees, although the pressure is brought against the employer. A sympathetic strike is a work cessation by employees seeking no concessions from their own employer, but lending their support to employees in another business who are seeking to force concessions from their employer. A boycott is a refusal to deal in order to force concessions. In labor disputes a secondary boycott is a concerted refusal to deal with persons who have dealings with an employer who is involved in a primary labor dispute. Few types of Labor Disputes Union Recognition A typical dispute concerning union recognition occurs when a union presents a demand to an employer, stating that his employees have designated the union as their representative for collective bargaining purposes, and the employer refuses to accede to the demand on the ground that the union is not authorized to speak for the employees. For instance, a union may present a demand to an employer that he henceforth employ only members in good standing of that union, without asserting that any of the employees are members of the union or even that they desire the union to make the arrangement set forth in its demand ‘ontract Negotiations Disputes in the negotiation of contracts have to do with the basic framework which is to govern the relationship between an employer and his employees. Most of the recent spectacular strikes, in basic industries have been outgrowths of this type of disagreement. The category includes not Labour Law and Industrial Relations | 51only disputes in the negotiation of an initial agreement or of any renewal of such an agreement, but also disputes concerning provisions of the contract which are subject to reopening and renegotiation during its term. ‘ontract Interpretation The third area of disagreement concems the application and interpretation of the collective agreement. From the standpoint of settlement this, in many respects, is the easiest type of dispute to deal ith. More and more it is being recognized that such questions can be resolved through procedures established by the parties themselves. In many contracts provision is made for their ultimate settlement by arbitration. It should be noted that the interpretation of contracts has, historically been a function of the courts, so that proposals that disputes in this area be submitted to a court or an arbitrator for decision do not involve any sharp departure from custom and tradition, The labor dispute process is further elaborated in the Employment Relations Act (Section 64, 65, 66 & 67) as being an issue to be “reported 10 the President of the Commission by a recognized trade union” and only “after meaningful negotiations have taken place between the parties and a stage of deadlock has been reached.” The President of the Commission has the power to accept or reject a labor dispute based on its eligibility (as per Section 67 on the limitation on report of Labor Disputes) after the negotiation before bringing it to the Tribunal. Therefore, the aim of the employers should be to improve the effectiveness of dispute resolution and prevention, by establishing or revitalizing institutions and administrative units for mediation and voluntary arbitration, so as to reinforce consensus-based processes and reduce the systemic need for social partners to resort to adjudicative processes. Joint Negotiating Panel Joint negotiating panel is described as “the representatives of 2 or more trade unions of workers having negotiating rights” in the Employment Relations Act, The panel consist of the members of the trade union who lead the negotiation process with employers during the course of Labour Law and Industrial Relations | 52employment relations issues. These are the members who participate in the joint negotiating committee to bring forward the changes in different terms and conditions of work, for instance, pension issues, work life balance and others. The Parties (members of the Panel) agree to the creation of a Joint Negotiating Committee, with an equal number of representatives, not exceeding six persons on each side, unless the Parties agree otherwise. Each Party also has the right to be assisted by technical advisers of its choice in preparations for meetings. Such technical advisers may be invited to meetings of the Joint Negotiating Committee by prior agreement between the Parties. Joint resource persons may be invited subject to prior agreement by both Parties. Wherever possible, regional, gender and staff-category considerations would be taken into account in the composition of the negotiating Parties. The Joint Negotiating Committee shall nominate its Joint Chairpersons, one representing the Union and the other the Office. Each side shall nominate a Secretary, and together the two Secretaries shall be responsible for all the administrative arrangements for the meetings, including production of the draft agenda, The joint Secretaries will also produce a report of the proceedings within two weeks of each meeting, unless otherwise agreed, for approval in the subsequent meeting. The Joint Negotiating Committee shall meet within 20 working days of a request of one of the Parties, but at least three times a year. Union representatives shall be entitled to hold a meeting prior to each Joint Negotiating Committee meeting. Additionally, an example of the actions taken by the Joint Negotiating Panel in Mauritius is in 2011 concerning the Sugar Industry. The Joint Negotiating Panel of the union agreed with the principle of forgiveness to apply national and the Mauritius Sugar Planters Association (MSPA) and other private institutions that have benefited from slavery and indentured as stipulated in the report. ve ask that the MSPA create a Post Slavery Fund, and across the state come to create a Human Dignity Fund, "said Ashok Subron a spokesman for the Joint Negotiating Panel (INP). These Labour Law and Industrial Relations | 53proposals follow the submission of the report of the Commi November 2011 INP members indicated they strongly agreed that the MSPA, and other private institutions that received slavery or indentured come to apologize to the nation of Mauritius. They also justified the recommendation which states that the State shall, in the same spirit, seeking the colonizing countries such as France, England and Holland, However specify the union, if the leaders of the MSPA adhere not ask, they will go to campaign against the sugar”. The employers have benefited for years, and although slavery and indentured labor were abolished, they still continue to make money on the backs of workers ", for its part, said Serge Jaufret, another spokesman for the Joint Negotiating Panel. This can be considered as a strong case for defending the rights of employees and where trade union members fought for justice and inerease in salary. Joint Negotiating Committee From the Perth and Kinross Council 2012, it can be deduced that Negotiations between the two Sides (employer v/s employees) shall be conducted within a committee to be known as the Joint Negotiating Committee. For the purpose of determining order of debate and other questions not provided for within this agreement, the Standing Orders of the Couneil will apply, with nees ary modifications at all INC meetings. Meetings of the INC are normally held in accordance with a cycle of meetings to be determined from time to time by the INC subject to the provision that there will be at least 4 meetings in each calendar year. One of the meetings shall be designated the Annual General Meeting for the purpose of approving the membership of the JNC and reviewing any standing sub-committees. With the approval of the Convener and the Vice-Convener, the joint secretaries may call a special meeting of the JNC at any time. The joint secretaries shall be responsible for making all arrangements for meetings of the INC. The composition of each side of the INC shall be determined by the Sides separately, but shall not exceed 10 members on each side. The JNC may, Labour Law and Industrial Relations | 54from time to time, appoint from among its own members a sub-committee or sub-committees to discharge such of the funetions of the INC as the NC may specify. Any member of the INC regardless of by whom nominated, shall be entitled to nominate a substitute from the relevant constituent body to attend a meeting of the INC on his/her behalf. In the event of any dispute being declared between the two Sides, the Council and the recognised unions hereby seek to resolve the matter, without delay through discussion in the JNC. The Council further agrees not to implement any change which is the subject of dispute until the matter has been considered by the INC. The recognised unions, likewise, further agree not to implement any form of industrial action unless and until the INC has failed to achieve a resolution of the matter in dispute. Where agreement between the two sides of the INC is not possible, either side may refer the matter to the Joint Chairs for conciliation. If the conciliation is unsuccessful, the Joint Chairs may recommend further procedures for resolution of the difference including external conciliation, mediation or binding arbitration, Besides, a recognition agreement forms a vital part of joint negotiating committee as it provides a framework for industrial relations within an organisation, It sets out the rules and procedures to be used by the union and the employer in carrying out consultation, collective bargaining and representation, The agreement outlines the basic principles shared by the union and the employer and their understanding of their respective roles and responsibilities. These will commonly include: © ajoint commitment to furthering the aims of the organisation «recognition of the importance of good industrial relations © acceptance of the need for joint consultation and collective bargaining © the need for both formal and informal channels of communication and problem solving © the need to make information available on issues affecting the staff or business of the organisation ‘© recognition that it is management's responsibility to plan, organise and manage the activities of the organisation ‘© recognition that it is the union’s responsibility to represent the interests of its members and work to improve their conditions of employment Labour Law and Industrial Relations | SS© commitment to protect the right of employees to join trade unions and encourage trade union membership * commitment to adhere to and develop policies on equal opportunities To add on, the scope of the agreement may include the terms and conditions of employment, pay awards, job descriptions, job grading and job evaluation, hours of work, holiday and sickness, arrangements, pensions, overall salary structure, health and safety, equal opportunities policies, new technology, working practices, new equipment and techniques, training and recruitment, staff amenities redundancy and redeployment, disciplinary, grievance and procedures contracting out, reorganisation of staff and relocation of offices and finally any other item which both sides, agree to refer. Recognition agreements should be clear on what can be subject to negotiation. At the end, negotiation commits both parties reaching an agreement. Disciplinary Sanctions Part 10 of the Employment Relations Act illustrates on the disciplinary procedures that can be taken as part of legal and disciplinary sanctions. The statutory provisions governing disciplinary procedures are minimal but clearly dictate how a disciplinary procedure should be conducted. In accordance with Section 157, 158, 159 and section 161 of Employment relations act, an employer may impose certain disciplinary penalties on its employees, which include a warning, fine or that should be taken before taking dismissal. Section 154 sets out strict legal formalitis disciplinary actions, such as: 1. The employee has been notified in writing of the allegations against him and what disciplinary actions may be taken; 2. The employee has been given an opportunity to comment on the allegations and also provided the help of a trade union representative or legal advisor; 3. The employer has investigated any defense provided by the employee in respect of the allegations; and ‘There are very strict time limits within which disciplinary action must be taken, An employer must initiate the disciplinary procedure within 30 calendar days of discovering the misconduct Labour Law and Industrial Relations | 56and any disciplinary sanction must be determined within 12 months of the investigation being concluded. Getting the procedure right before implementation of a particular disciplinary sanction is important to avoid litigation or, in a worst case scenario, protect the employer should a claim be filed by an employee. In particular, if an employer fails to comply with the statutory procedure, the final disciplinary penalty could be found by the Labor Courts to be unlawful (irrespective of the employee's poor performance or conduct). On the other hand, as far as the termination of employment is concemed, employees may pursue claims for arbitrary dismissal under the Labour Law, which is similar to the UK concept of unfair dis so is the procedure in Mauritius, Whether an employee will be successful with any such claim will ultimately depend on the reason for the termination and the process the employer undertook prior to terminating the employment. Therefore, itis essential for employers to follow the correct procedure from the outset, ‘An employer may terminate an employee working under an unlimited term contract at any time on written notice, provided the employer follows the process set out above, gives the employee the correct written notice of termination in accordance with the employment contract and the dismissal is for a “valid reason”. The notice period should be at least 30 calendar days. Although there is no definition of a “valid reason” in the Labour Law, an employee’s employment will be deemed to have been arbitrarily terminated if the reason for the termination was “irrelevant to the work”, In order to avoid the potential consequences of dismissing or imposing lesser sanctions on employees, it is important that the employer follows a fair and reasonable process and any sanction is supported and justified with documentary evidence. This should apply equally to cases of terminations for poor performance and summary dismissal for gross misconduct under Section 161 in the Employment Relations Act, Subject to the nature of the misconduct, employers may be required to notify the applicable governmental authority (which varies depending on the type Labour Law and Industrial Relations | 57of offence committed) or file a police complaint and await a final judgment against the employee, before confirming its final decision. A recommendation, employers should operate a company disciplinary policy (whether as part of the contract of employment, the staff handbook or a free-standing policy), which addresses the ‘minimum requirements set out in the Employment Relations Act. Any disciplinary policy should be communicated to all employees, be readily available for them to access, and serve as a guide throughout the disciplinary process. Young person As per the Employment Rights Act, a “young person" is defined as a person, other than a child, who is under the age of 18. The ERA sets the minimum age for work at 16, However, according to subsection (2a) of section 12, children under age 18 are prohibited from work that is likely to jeopardise their health, safety, or their physical, mental, moral or social development. Moreover, subsection (2b) states that no employer shall employ or continue to employ a young person after being notified in writing by the Permanent Secretary that a particular kind of work is unsuitable for the young person, or will have an impact on the young person's education. The Occupational Safety and Health (OSH) Act identifies these specific work activities, which include work with heavy metals and work in the forestry or construction sectors. In addition, section 13 discloses that an employer must maintain a record of all employces ages 16 to 18 being employed by him stating: (2) the full name of the young person; (b) the address of the young person; (c) the date of birth of the young person; and, (d) such other details that may be prescribed. It is further stipulated by subsection (6) of section 14 that no person shall employ a young person in an industrial undertaking between 10.00 pm and 5.00 am. Labour Law and Industrial Relations | 58Harassment Everyone should be treated with dignity and respect at work. But not everyone is destined to cherish the bliss of having a healthy working atmosphere. Unfortunately, some employees undergo harassment at the workplace. Harassment is the act of systematic and/or continued unwanted and annoying actions of one party or group including threats and demands. In general terms, it is unwanted conduct affecting the dignity of men and women in the workplace. It is also to be noted that any kind of harassment at work related to age, sex, race, disability, religion, sexual orientation, nationality, gender reassignment or any personal characteristic of the individual, and may be persistent or an isolated incident is unlawful discrimination. The key is that these unlawful actions or comments are viewed as demeaning and unacceptable to the recipient. It may be obvious or it may be insidious. Whatever form it takes, it is unwarranted and unwelcome to the individual as behaviour of this kind is in no-one's interest and should not be tolerated in the workplace. Therefore, employers are responsible for preventing bullying and harassment as they are liable for any harassment suffered by their employees. Such activities may be the basis for a lawsuit, Evidently, to prevent harassment, policies and laws can be set up to deal with these issues; which section 4 of the Employment Rights Act i.e. discrimination in employment and workplace has been specially designed by law to intervene in such cases. Bullying at work is also considered as a form of harassment as it includes repeated, health-harming mistreatment, verbal abuse, or conduct which is threatening, humiliating, intimidating, or sabotage that interferes with work or some combination of the three. It may also be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. Bullying or harassment may be by an individual against an individual (perhaps by someone in a position of authority such as a manager or supervisor) or involve groups of people. Moreover, the purposes of harassment may vary from racial prejudice, personal malice, an attempt to force someone to quit a job, grant sexual favors, apply illegal pressure to collect a bill including gaining sadistic pleasure from making someone fearful and anxious. if due to discrimination based on race or sex, a violation on the statutory limitations on collection agencies. Labour Law and Industrial Relations | 59Other examples of bullying/harassing behaviour de: * copying memos that are critical about someone to others who do not need to know ‘* ridiculing or demeaning someone - picking on them or setting them up to fail © exclusion or victimisation © unfair treatment © overbearing supervision or other misuse of power or position * unwelcome sexual advances - touching, standing too close, the display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected ‘making threats or comments about job security without foundation * deliberately undermining a competent worker by overloading and constant criticism * preventing individuals progressing by intentionally blocking promotion or training opportunities. Bullying and harassment are not necessarily face to face. They may also occur in written communications, email, phone, and automatic supervision methods such as computer recording of downtime from work or the number of calls handled if these are not applied to all worker. Bullying and harassment make someone feel anxious and humiliated. Feelings of anger and frustration at being unable to cope may be triggered. Some people may try to retaliate in some way. Others may become frightened and demotivated. Stress, loss of self-confidence and self- esteem caused by harassment or bullying can lead to job insecurity, illness, absence from work, and even resignation. Almost always job performance is affected and relations in the workplace suffer. Below is the case of a lady who has undergone harassment at work. se Examp| Things are getting tougher for Rehanna Gafoor (called Ameer). The union of the Mauritius Broadcasting Corporation (MBC) filed a complaint against the management for harassment. Regarding this matter, she has an appointment on 17 February 2016 with the Ministry of Labour. With respect to these allegations, the management of the Mauritius Broadcasting Corporation (MBC) will have to provide explanation for their actions. In her letter addressed to the Ministry, Rehanna Gafoor explains how the situation has become worse and how the company’s Labour Law and Industrial Relations | 60‘management has been behaving with her. According to her, her superiors do not trust her since she has been transferred to Moka. Moreover, she has been isolated and marginalised in the organisation. The unionist says that the inappropriate comments that were being passed affected her to such an extent that she had to stop working. Soon after, she had to be hospitalized for several days. Being in charge of the Department of Marketing and Logistics, Rehanna Gafoor was sent to an office in Port-Louis with her other colleagues. However, with the change in Government, the MBC decided not to rent offices in the capital, Therefore, the department was, transferred to Moka. Itis from this period that the reprimands, pressures and intimidation started, as the employee Rehanna Gafoor stated, In mid-January, she received a warning letter from the management of the MBC for having spoken in a public meeting. During that meeting, she expressed herself at a gathering where she was the representative and president of “L‘Observatoire de la démocratie.’. Sole bargaining agent Agents often bargain on behalf of their principals. As per the definitions in the Employee Relations Act 2008, “sole bargaining agent” means a trade union of workers or a joint negotiating panel which has exclusive negotiating rights in respect of a bargaining unit. A bargaining unit represents workers or classes of workers, whether or not employed by the same employer, on whose behalfa collective agreement may be made. While according to section 37; subsection (1), a bargaining agent designate a trade union for a bargaining unit of an enterprise or industry where it has the support of a minimum of 30 per cent of the workers, subsection (2) describes a sole bargaining agent as a trade union having the support of more than 50 per cent of the members of the bargaining unit of the enterprise or industry. Subsection 6 of section 8 also stipulates that whenever a trade union is recognized as a sole bargaining agent, it shall replace any other trade union or group of trade unions as the bargaining agent of the workers. Labour Law and Industrial Relations | 61Negotiating rights Colles ive bargaining and collective labour agreements are meant to regulate the employment relationship and the rights and obligations of the employer and the employee on topics such as contracts, working hours and wages. These agreements are usually the result of collective bargaining between unions and (groups of) employers and are legally binding for all employees, working in a company. However, to participate collective bargaining, employees should have the right to do so. Therefore, as defined in the Employee Relations Act 2008, negotiating rights provide the employees with the right to participate and bargain collectively on behalf of the workers in a bargaining unit Section 36 of ERA: Application for recognition Starting with section 36 of the Employee Relations Act 2008 which deals with application for recognition, it stipulates that a trade union or a group of trade union of workers acting jointly may apply in writing to their employer for recognition as a bargaining agent or as a joint negotiating panel or as a sole bargaining agent for bargaining unit, The written application must be attached with a copy of certificate of registration of each trade union, a copy of the agreement between or among the trade unions acting jointly and the number and category of members that each of the trade unions has in the bargaining unit. Furthermore, subsection (3) of section 36 stipulates that, an employer shall, within 60 days of receipt of the application, inform the trade union or group of trade unions in writing whether he has recognised the trade union or the group of trade unions, as a bargaining agent or whether he refuses to recognise the trade union or group of trade unions as a bargaining agent and state the reasons thereof. Therefore, once the trade unions have been recognised, they will be further encouraged to take any action legally. Subject to subsections (2) and (3), a trade union shall be entitled to recognition as a bargaining agent for a bargaining unit in an enterprise or industry. Itis also necessary that it has the support of not less than 30 per cent and not more than SO per cent of the workers in the bargaining unit of the enterprise or industry. Labour Law and Industrial Relations | 62Subject to subsection (3), ifthe trade union has the support of more than 50 per cent of the workers in the bargaining unit in the enterprise or industry, itis then that it will be entitled to recognition as sole bargaining agent of the bargaining unit of that enterprise or industry In addition to this, if there are 2 or more trade unions which have each the support of not less than 30 per cent and not more than 50 per cent of the workers in a bargaining unit in an enterprise or industry, they have the right to be entitled to be recognised as a joint negotiating panel of the bargaining unit of the enterprise or industry. Once the a trade union or group of trade unions has been granted recognition as a sole bargaining agent or joint negotiating panel respectively for a bargaining unit in an enterprise or industry, no other trade union shall be entitled to recognition for the bargaining unit except by virtue of an order or determination of the Tribunal under section 38. Section 37 (4) further specifies that when a trade union has been granted recognition under subsection (1) and one ot more new trade unions have the support of not less than 30 per cent and not more than 50 per cent of the workers in the bargaining unit apply to the employer for recognition, in such cases, the employer may grant recognition to the trade unions altogether as, a joint negotiating panel of that bargaining unit. Conversely, the employer has the right not to grant recognition to any of the new trade unions which refus s to form part of a joint negotiating panel. Also, the employer or one or more of the new trade unions have the authority to apply to the Tribunal for an order directing the existing trade union to form part of the joint negotiating panel may in cases where the existing trade union refuses to form part of a joint negotiating pancl. Once a trade union has been granted recognition under subsection (1) and a new trade union which has the support of more than 50 per cent of the workers in the bargaining unit, applies to the employer for recognition in respect of that bargaining unit, the employer or the new trade union may apply to the Tribunal for its determination as to which trade union is to be recognised, and the Tribunal shall make an order to that effect, Moreover, if there is no recognised trade union in an enterprise or industry and a trade union or group of trade unions, which is not entitled to recognition under subsection (1) or (2) (b), applies for recognition to an employer, the employer Labour Law and Industrial Relations | 63,may voluntarily grant recognition to the trade union or group of trade unions having obtained the highest percentage of support from the workers in the bargaining unit of the enterprise or industry. Section 38 of ERA: Order for recognition of trade union of workers Referring to section 38, where an employer refuses to grant recognition to a trade union or group of trade unions in accordance with section 37, the trade union or group of trade unions may apply to the Tribunal for an order directing the employer to recognise the trade union or group of trade unions. Similarly, on an application made under subsection (1), the Tribunal shall with respect to subsection (3), issue an order that the trade union or group of trade unions be granted recognition where the Tribunal is satisfied that that trade union or group of trade unions has produced evidence that it is eligible for recognition in accordance with section 37. It shall also organise and supervise a secret ballot in a bargaining unit in an enterprise or industry, in order to determine which trade union the workers in the bargaining unit wish to be their bargaining agent in accordance with section 37, The latter stipulates that when a trade union or group of trade unions already has recognition in respect of that bargaining unit and that the Tribunal is satisfied that the applicant trade union or group of trade unions has produced evidence that it is eligible for recognition in accordance with section 37. Furthermore, upon application, the Tribunal may also organise and supervise a secret ballot in a bargaining unit, in order to determine which trade union the workers in the bargaining unit wish to be their bargaining agent in accordance with section 37. This shall happen when no other trade union or group of trade unions has been granted recognition in respect of the bargaining unit and the Tribunal is satisfied that 2 or more of the applicant trade unions have each the support of more than 50 per cent of the workers in the bargaining unit. The Tribunal also reserves the right to set aside the application where it is satisfied that a trade union or group of trade unions has not produced evidence that itis eligible for recognition in accordance with section 37. Labour Law and Industrial Relations | 64Subject to section 38(3), the Tribunal may organise and supervise a secret ballot in the bargaining unit before making an order under subsection (2)(a) and setting aside an application under subsection (2y(d). Furthermore, subsection (4) stipulates that the Tribunal shall within a period of 30 days of the receipt determine an application under subsection (1). However, in exceptional situations the Tribunal may extend the delay for another period of 30 days. Additionally, subsection (5) specifies that where the Tribunal makes an order granting recognition, the order shall; (a) specify the employer and the trade union to which it relates; (b) specify the bargaining unit; (c) declare whether the trade union shall be recognised as a bargaining agent or a sole bargaining or whether there shall be a joint negotiating panel; (d) require the trade union or the joint negotiating panel and the employer concerned to meet at indicated intervals or at such time and on such occasions , as the situations may require, for the purpose of collective bargaining. In circumstance, where a trade union has been recognised as a sole bargaining agent or a group of trade unions has been recognised as a joint negotiating panel, subsection (6) clearly specifies that it shall replace any other trade unions or a group of trade unions as the bargaining agent of the workers. Also, where recognition has been declared, no claim for recognition or revocation or variation of recognition shall be entertained before the expiry of the 12 months period following the date of the order. Moreover, the Tribunal may enquire into, the independence of the trade unions in relation to the employer and the representativeness of the trade unions, in line with section 37, where the acknowledgement of a new trade union gives rise to the revocation of the recognition of another trade union before taking the decision to grant an order to the new trade unions. Lastly, according to subsection (9), where an order is not complied with, the aggrieved party may appeal to the Tribunal for compensation and the Tribunal shall order for the payment of the compensation which shall not be less than 500 rupees daily so long as the order is not conformed with Labour Law and Industrial Relations | 65,Section 39 of ERA: Revocation or variation of recognition of trade union of workers Subsection 39 (1), stipulates that the Tribunal may in accordance with subsection 38(7), firstly make an order to revoke or vary the recognition of another trade union where it has been satisfied that there has been a change in representativeness on the appeal made by a trade union or group of trade unions or secondly make a demand to revoke the recognition of another trade union or a joint negotiating panel for failure to comply with any provisions of a procedure agreement based on an application by an employer. Furthermore, when an application for revocation is made under subsection (1), the existence of the trade union or joint negotiating panel shall remain in force until a decision is taken by the Tribunal. Consequently, an application to revoke or vary shall be determined within 30 days of the receipt of the application by the Tribunal and may in exceptional cases be extended for another 30 days, Section 40 of ERA: Access to workplace According to subjection 40(1), any officer or negotiator of a recognised trade union or joint negotiating panel in an enterprise shall be entitled the right to enter the employer's premises for the following reasons; (a) participating in collective bargaining or serve member's interest, (b) dealing with matters such as health and safety of employees (c) monitoring compliance with collective agreement (4) communicating, holding meeting and discussing trade union business. Besides, these activities shall be protected for the preventions of life and property and prevention of disruption of work. Nevertheless, according to subsection (3), an officer or negotiator shall reveal the purpose of his entry and produce evidence of his authority to represent the trade union before entering the work premises. In addition, subject to the purpose of his visit, any officer or negotiator of a registered trade union may enter a workplace mainly a worker who is a member ofa trade union to stand for his legal rights. Subsection (5), specifies that in circumstances where a trade union’s officer or negotiator has been unreasonably denied entry to workplace by an employer or his representatives, the trade union can apply to the Tribunal for an order. Labour Law and Industrial Relations | 66‘Subsequently, the application made shall be determined within 30 days of the receipt of the application, Henceforth, where the Tribunal is convinced that the employer or his representatives has unjustly denied entry to officers and negotiators of the trade union, it may grant such entry, but on certain conditions. Likewise, the employer shall comply with the order of the Tribunal within 7 days following the date of the order, Section 41of ERA: Access to informal Subsection (1) stipulates that where an employer is involved in collective bargaining with a recognised trade union or a joint negotiating panel, either party shall dispense to the other party all the information that are needed and are pertinent to the purposes of collective bargaining, Moreover, according to subsection (2), when a request is made for the purpose of collective bargaining, it is required that this request is made in writing, The request must also specify the nature of the information adjured with all the necessary details to enable the easy recognition of the information. In addition, the request must indicate a reasonable time within which the information is to be supplied. As per subsection (3), neither the trade union nor the joint negotiating panel shall be required to divulge information that: (a) is forbidden to be released by law or by order of any court. (b) may engender any detriment to the concem of the enterprise or to a worker. (0) is personal information pertaining to the worker’s privacy, unless the latter agrees to the disclosure of that information Furthermore, subsection 4 of section 41 states that whenever any party does not consent to provide information under this section, the other party may apply to the Tribunal for an order. If the Tribunal has been convinced that the requested information does not fall within the purview of subsection (3), it may make such order necessitating that the information is provided. It is mentioned in subsection (5) that any application made under subsection (4) must be brought within 30 days of the date on which the application has been received. Labour Law and Industrial Relations | 67Subsection (6) further stipulates that any information which is provided under section 41 needs to be used for the sole purpose of collective bargaining, unless otherwise consented by both parties. Lastly, as per subsection (7), any party is required to conform to an order under subsection (4) in not more than 14 days of the date of the order. Section 42 of ERA: Time-off facilities Subsection (1) of section 42 states that an officer or a negotiator need to be provided with reasonable time-off without loss of pay when he is effectuating his trade union functions and activities, as per the exigencies of his employment. This however should not disrupt the smooth operation of his workplace. Moreover, according to subsection (2), a procedure agreement must as far as possible specify the extent, duration and conditions of remunerated time-of and must take into consideration: (a) the size of the trade union to which the officer or the negotiator belongs and the type and volume of activities being carried out by the trade unions; (b) the supplemental responsibilities of an officer or negotiator of trade union at the level of a federation or a confederation. Also, as stipulated by subsection (3), the agreement for a time-off facility shall be for a minimum period of 24 months, Finally, subsection (4) states that subject to subsection (2), an application for time-off under section 42 must be made to the employer within a reasonable time. It is further specified in this, subsection that the employer shall not refuse to give the approval without any valid motive. ‘xample of a case to illustrate legal issues pertaining to time-off facilities Allegations: Restrictions on time-off facilities for trade union officials In its communication of 22 February 1999, the Government Teachers' Union (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 Labour Law and Industrial Relations | 68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 ecretaries and reduced considerably time-off facilities from five to one day for president 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. ‘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. Labour Law and Industrial Relations | 69Section 69 of ERA: Conciliation and Mediation Report Disputes between parties can be resolved in a number of ways: lawsuits (litigation), arbitration, mediation, conciliation, or still by negotiation. . The mediation or conciliation process is an entirely consensual one in which parties that are in dispute determine how to resolve the dispute, with the assistance of a neutral third party. The neutral third party has no authority to impose on the parties a solution to the dispute. Section 69 of the Employment Relations Act, consists of the conciliation and mediation report. According to subsection (1), where a labour dispute has been reported to the President of the Commission under section 64, and the report has not been rejected by the President of the Commission under section 65 or where it has been rejected, such as the rejection has been cancelled on an appeal to the Tribunal under section 66, the Commission may, with a view of promoting a settlement to the dispute: (a) make proposals to the parties for the settlement of the dispute (b) conciliate the parties (c) mediate and make recommendations to the parties (d) makes investigation as he thinks fit Furthermore, subsection (2) stipulates that, where an agreement has been reached succeeding conciliation and mediation in line with subsection (1), the agreement shall; (a) be recorded in writing; (b) be signed by the parties; (©) be registered with the Supervising Officer of the Ministry and the Tribunal (d) have the effect of a collective agreement as specified in sections 55 and 56. However, -ording to subsection (3), the Commission shall complete its proceedings within 30 days of the date of receipt of the labour dispute under section 64. Nevertheless, the Commission may extend the period specified in subsection (3), due to ertain circumstances, at the appeal of the parties to the labour dispute. Labour Law and Industrial Relations | 70Furthermore, subsection (5), specifies that where no settlement is reached after the 30 days on receipt or after the expiry date of the extended period, the Commission shall; (2) Within 7 days submit a report to that effect to the parties to the dispute (b) Advise the parties to refer the labour dispute for voluntary arbitration under section 63 Besides, subsection (7) and section 76 to 79 stipulates that where the parties refuse to refer the labour dispute for voluntary arbitration, the party having reported the labour dispute may have recourse to strike or lock-out, within 45 days of the submission of the report by the President of the Commission under subsection 5 (a). Lastly, where no agreement is reached, the Commission may within 7 days, with the consent of the worker refer the labour dispute to the Tribunal for arbitration, Conciliation Conciliation refers to the process of adjusting or settling disputes in a friendly manner through extra judicial means. Also, it involves bringing two opposing parties together to reach a compromise in an attempt to avoid a case to trial. The 2002 UNCITRAL Model Law on International Commercial Conciliation defines conciliation as,” a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons (the conciliator) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship”. Furthermore, as noted by, Bunni (2008), Conciliation is a more formal process than mediation and it could generally involve the engagement of legal representatives, thus making it a more expensive process than mediation, In the conciliation process, the conciliator does not have the authority to impose upon the parties a solution to the dispute. Additionally, conciliation is viewed as a process similar to mediation but the neutral third party takes a more interventionist role in bringing the two parties together. In the event the parties are unable to reach a mutually acceptable settlement, the conciliator issues a recommendation which is binding on the parties unless it is rejected by one of them. While the conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, it is not a Labour Law and Industrial Relations | 71determinative. Hence, a conciliator does not have the power to impose a settlement. It is also believed that intemational conciliation involving international organisations has certain unique characteristics. Such as, s goal is not solely to end a dispute but also to prevent the dispute from worsening and ensure respect for the principles on which the organisation is founded, Mediation On the other hand, Mediation is a dispute-resolution process in which an independent third party helps disputants to settle a conflict in a mutually acceptable manner. The disputing parties, whether individuals or nations, are active participants. It has also been suggested that the term mediate is derived from the Latin word _"mediare” which means to be in the middle. Usually, mediation is said to work in favour of ‘cooperation’ instead of confrontation and for a ‘consensus orientated’ Indeed, Menkel —Meadow (1995), describes the different conceptual approaches to mediation, Boulle ( Mediation; principles, process, practice 2nd edition), describes four model of mediation . Riskin ( 1996), has a grid of mediators orientation and Alexander (2008), presents six contemporary practice models of mediation in her meta-model. While there are many definitions of mediation, most people agree that the determination of the process is to assist people in reaching a voluntary resolution of a dispute. Therefore, in its simplest form, it can be said that mediation is negotiation facilitated by a third-party Often, this basic definition of mediation is a process used daily by people swho may not even realise that they are engaged in a mediation process. For instance, at work a manager may informally mediate a dispute between two employees. Similarly, Sourdin (2009) has suggested that mediation is impossible to define, with various forms of processes used in different jurisdictions and subject areas, with the primary difference relating to the role of the mediator. Additionally, mediation can be defined as a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. However, the mediator has no power on the decision concerning the Labour Law and Industrial Relations | 72conflict between the parties, but helps to find and reach a mutually agreed and voluntarily reached solution. Furthermore, the mediator supports both parties by special negotiation skills and techniques and does not solve the dispute by dictatorial way. Mediation is not an adversarial proceeding. There is no “plaintiff” or “defendant” as with arbitration, and the mediator does not seek to determine “who is wrong” and “who is righ Basic Principles of Conciliation and Mediation 1, Mediation and conciliation procedures require the consent in writing of the Parties before they may be initiated. 2, Mediation and conciliation procedures shall be conducted in conditions of confidentiality and in accordance with the general principles of fairness, impartiality and good faith. 3. The Parties shall participate in a responsible manner and cooperate in order to proceed as expeditiously as possible, 4, The Parties, the Mediator(s) or the Conciliator(s) shall participate with a view to facilitate an amicable and just solution or settlements of the dispute having due regard to international law and recognized principles. Labour Law and Industrial Relations | 73,QUESTIONS Labour Law and Industrial Relations | 741. Contract of Employment (Agreement and Essentials) A contract of employment is an agreement between two legal parties. In terms of which one of the parties (the employee) undertakes to place his/her personal services at the disposal of the other party (the employer) for an indefinite or determined period in return for a fixed or ascertainable wage and which entitles the employer to define the employee’s duties and to control the manner in which the employee discharges them. A, Agreement between 2 parties The content of each contract will depend on the nature of the business and the job which is on offer, although there are some standard terms and conditions. Whether or not the employment contract is verbal or in writing, employees should have a duty of confidentiality which requires they not disclose trade secrets and confidential information. In addition, they are prohibited from using such information after termination of employment. All employees also owe their employers a general duty of good faith and fidelity. The agreement is a guarantee and security for both parties. For employees, it guarantees that you to work in a professional environment with specified conditions, obligations from you and a remuneration for your work, All this must be approved by the employee. For the employer, the contract is a guarantee that the employee is aware of its obligations and has agreed to work under specific conditions. If you work in a company, whether part time or full time, require a written employment contract. An agreement may also be done orally for services such as babysitting, but it cannot be considered as a contract because there is no signature and written evidence. Additionally, as per section 5 (5) of the Employment Rights Act 2008, where a worker is required to perform his duty, his employer or the former’s agent shall, before the beginning of the duty, make the worker fully aware of the nature of the task as well as the rate at which the latter would be remunerated. Labour Law and Industrial Relations | 75A contract of employment entails the following: a, Offer: There must be a definite, clearly stated offer to do something which shall lapse i) when the time for acceptance expires; ii) if the offer is withdrawn before it is accepted; or iii) after a reasonable time in the circumstances (generally the greater the value of the contract, the longer the life of the offer). b. Acceptance: Only what is offered can be accepted. This means that the offer must be accepted exactly as offered without conditions. If any new terms are suggested this is regarded as a counter offer which can be accepted or rejected. There can be many offers and counter offers before there is an agreement. It is not important who makes the final offer, it is the acceptance of that offer that brings the negotiations to an end by establishing the terms and conditions of the contract. €. Intention of legal consequences: A contract requires that the parti intend to enter into a legally binding agreement. That is, the parties entering into the contract must intend to create legal relations and must understand that the agreement can be enforced by law. The intention to create legal relations is presumed, so the contract doesn’t have to expressly state that you understand and intend legal consequences to follow, and finally; 4. Consideration: In order for a contract to be binding it must be supported by valuable consideration. That is to say, one party promises to do something in return for a promise from the other party to provide a benefit of value (the consideration).Consideration is what each party gives to the other as the agreed price for the other’s promises. Usually the consideration is the payment of money but it need not be; it can be anything of value including the promise not to do something, or to refrain from exercising some right. B. Provision of personal services at the disposal of the employer Sometimes there is no written or oral agreement as mentioned above but the behaviour of the employer and the employee can be viewed as an implied employment contrat, When entering a work agreement the employees has to put his personal services, which are part of his being, at Labour Law and Industrial Relations | 76the disposal of his employer. This signifies the exchange element against which the worker is provided a fix or ascertainable wage. C. Length of contract Another essential element of any employment contract is in relation to termination of the employment relationship. An employer may enter into an agreement with a worker for a specified period of time(section 5 (3A)of the Employment Rights Act 2008), While most employees do not think about termination when they first start a new job, the rights and obligations with respect to the termination of the employment relationship end up being extremely important. D, Remuneration The first duty of an employer is to receive the employee into service which is a prerequisite for remuneration under the employment contract, Any prospective employee expects an employment contract that defines compensation. Therefore, to remunerate the employee is one of the duties of the employer. The payment of wages by the employer in returns for the performance by the employees of their duties is so fundamental to the employment contract that the courts will assume, where there has been no agreement on wages, either that the contract is not a contract of employment or that the parties impliedly intended the payment of a reasonable sum according to custom and practice of the industry & locality. According to section 21 of the Employment Rights Act 2008 an employer should remunerate an employee directly at the place of work, at monthly intervals or unless both parties agreed otherwise and it can be any form of currency that by law cannot be refused or maybe as agreed by both parties, by cheque or into the worker’s bank account, In addition, compensation can take many forms, such as salary and wages, bonuses, benefits, vacation entitlement, profit-sharing, and vehicle allowances. It is important that when individuals commence employment they fully understand what compensation they will be entitled to and the basis for such entitlement, As there sometimes can be confusion in regard to entitlement to Labour Law and Industrial Relations | 77compensation, a written employment contract setting out exactly what compensation will be provided is preferable. However, at a minimum, employees should ensure that they get as much information as possible in regard to their compensation entitlement, including any relevant employee handbooks or brochures that deal with compensation, It is important, for example, that employees understand when they will be entitled to receive bonuses or participate in profit- sharing, particularly in case their employment is terminated, However the duty to receive employees into service does not mean the employers must provide employees with work to keep them busy. E, Right to control ‘The employer has the right to control the manner in which the employee discharges the assigned duties and he is also capable to use disciplinary sanctions against employees in order to maintain workplace discipline. Thus, whether stated or not in the contract, both the employee and the employer owe the duty of mutual confidence and trust, and to make only lawful and reasonable demands on each other. Every employee is under the obligation to carry assigned duties, or the employer's instructions to the best of his or her abilities Moreover, to create the reciprocal rights and liabilities of “‘commettants”” and “‘préposés’? and the consequences ai jing therefrom is necessarily that the one, the “‘commettant’’, should have chosen the other ,that is, the ‘‘préposés’’, and that the former should have the power to give the latter orders and instructions relative to the business or work confided to him; and if in the discharge of such business or execution of such work, the “‘préposé”” is guilty of negligence whereby a third party suffers, then the ‘‘commettant’” is civilly answerable, for he has to impute to himself the blame of having given orders without providing that they be duly executed, or of having chosen careless and negligent agents. This is called vicarious liability where there is the transfer of liability of the employee to the employer. However if an unauthorised and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it but is an independent act, then the employer is not responsible. Labour Law and Industrial Relations | 782. Particulars Of A Contract Of Employment As per section 8, subsection 1 of the Employment Rights Act 2008 (as amended), a worker who has been working for a period of 30 consecutive days shall be provided with a written statement of particulars of employment in the following form: PARTICULARS OF WORK AGREEMENTICONTRAT DU TRAVAILIKONTRA TRAVAY 1. Name of emplayerinom de Femployeurrncm lanpinayer= 2. National Pensions Registration Numberinumérediearegitrement de (a persian fatoraleinimeroanreaistremanparsionnasicn a 3, Business Rogstration Number National Identity Card Nurbor of employerinuméro ‘enregistement de Tentveprselnurero de Carte didandiéNoworale de Femployourinmeroanrezsiremaniantrepra/hinsro kal kisnbtnasionstangkwayer— 4. Address of employerladnease de lemployaunfadrasianpivayer 5. Nature of actvty nature de Factvtéiratriakivie §, Namo of wrktnom di tavalozram Havayar. 7, Sex of workerisene du travaiieurisextraveyer= 8. National identty Card Number/Passport No. (non-citzensnuméro dela carte didentie ‘fatonaleinumnero di passepor (strangersinimere kart darttenasionalnimeroDesper (ctranzer)~ 9, Date of bith of woskeridate do naissance du travaiiewriatnesans travaye 10. Address of worker (specify disrictfacresse du travaileur (specifier le distr Vlacres sravayer (presicieesni) 11. Date of commencement of agreemenvdate du début du cantattathersanamackonire— 12, Place of workou du travaipiastavay 13, Grade, class or category of enploymentiquali, classcoueatégoried empl, Hae oukatoporiravay— “4 Rate and particulars of remunerationtaureldétie de rlmunbrationManitsdetayonier 415, Inlorval at which romunoraton is to be paidintsrvaleauquelrémunératondoitto erstepenodvouapey 16, Normal hours of morkheuresrormales de favaNeranay — Doteidatesdat Slonsture of employer signature de Temployeuragnainanpiayer Labour Law and Industrial Relations | 79AAs seen above, the form is drawn up in English, French as well as the local language, creole in an attempt to make it understandable and readable by all. Additionally, the aforementioned form shall be provided to the employee within a period of 14 weeks after the successful completion of 30 days’ service. ‘The particulars in the statement are such that an employer receives all the appropriate information, in writing, of his duty. Additionally, a copy of the statement of particulars shall be submitted to the Permanent Secretary within a month after the worker has completed 30 consecutive working days’ service. Labour Law and Industrial Relations | 803. Duties Of An Employee A worker is not only someone who applies service to his/her respective employer, but also to his colleagues and workers of the same company at work. In case of affiliation to a union, the worker must uphold his commitment also to his/her membership. A diligent worker understands that his/her behavior is one side in the organisation that can shape a fair and just employment relations. Below are the duties that an employee is expected to perform: © To enter and remain in ser ‘The main obligation of an employee under the contract of service is to place his personal services at the disposal of his employer so as to entitle him to receive wages. Failure to render service empowers the employer to deduct from the employees wage on amount proportional to non- rendering of service. Additionally, there is a continuing obligation to render service until the contract of employment comes to an end. The worker should make clear of his/her terms of his/her contract of employment and follow its course. To continue his/her continuity in the company, it is a matter of safeguarding and procedure to be familiar with arrangements for dealing with grievances and other question, just in case, ‘+ Maintain reasonable efficiency To be consistent in one's performance and practices, is an implied guarantee in every employment contract. Where the employee's competence is investigated by the employer before it takes him or her into service, the employee will be bound by representations made in testimonials and references which is submitted, Where the employee has warranted that he/she possesses a particular degree or skill, he /she must satisfy the representation. However the purpose of disciple in employment is corrective not punitive; that is, certain contexts demand some careful observations. For example, the status and seniority accorded to the employee may be re-designed to suit his normal working capacities, in case of failure to render consistency in performance. « To further employer’s business interest, Employees are under a positive duty to use their energies and skills to furthering their employer’s business interest, They must devote all their normal working hours to the employer’s busin. s Labour Law and Industrial Relations | 81and may not without the employer’s permission simultaneously work for another employer during those hours. If such happens, then it is said to have a breach of their fiduciary duty as mentioned above the duty of good faith. A socially responsible employer may engage his/her employees (upon their agreeableness) to special obligations such as community and welfare participation, And some workers might already be accustomed to such movement and should not be hindered by the employer in carrying so. Belonging to a trade union adds further responsibility but should not hinder the worker's former work obligations. On due notice and concerted by his, employer, the worker may make a leave of his/her organisation to take part into union activities. To be respectful & obedient A harmonious interpersonal relationship is an implied duty that is concerned during relevant normal working hours. ‘The most that this requirement imposes on the employee is a duty to behave in a manner compatible with the subordinate position in which the employee by definition stands vis-d-vis the employer. It is considered lawful authority and reasonable to demonstrate respect accordingly to one's employer or supervisor. + Torefrain from any misconduct Any mi onduct that renders the continuation of employment relationship intolerable or that ‘undermines trust and confidence between the employer and the employee is regarded as sufficient to justify dismissal. Misconduct can have a bearing if it is committed either before or after the parties enter into the agreement and may, in appropriate circumstances, constitutes, a ground for dismissal. As this offsets the importance which the court attach to the work security and ethics dutiful of an employee. Example: Insubordination involves a breach of the employee’s obligation to obey their employers which refers to as a gross misconduct. However the employer also is under an obligation to protect the employee from harm or injury which is one amongst their duties and make fair compensation for any loss or damage resulting from any job-related accident. Labour Law and Industrial Relations | 824. Duties of an Employer Employers are the leaders of a company of people but not yet always the villains or inquisitors, as the common believes tend to unfairly disgrace. An employer is in the right place to initiate an aura of social justice in the company with a balanced; fairness of equality in work and values of humanity at work. To uphold and bear rightly this practice, the duties and rights of employers are a guide and are as follows: Just as an employee has the moral and legal duty to remain into service, to maintain reasonable efficiency, to further his employer's business interest and to be obedient and respectful, an employer has an equally important set of duties that shall be adhered to. + Toreceive the employee into service The first and foremost duty of any employer is to receive the employee into service. When an offer of employment had been made on part of the employer, and the same is accepted by the employee, they both enter in an agreement which bind the two parties to a set of reciprocal obligations. If an agreement has been drawn, and the employer refuses to receive the employee in question into service, the employer commits a serious breach of the agreement. Additionally, receiving into service does not mean that the employee is provided with work inferior to his representations in a mere attempt to keep the latter busy. + Toremunerate the employee One of the essential element in any contract of employment is the wage element whereby an employee exchanges his personal services for a fixed or ascertainable wage. In case the wage clement is not included, the agreement might not be seen as a contract of employment, or that the parties implied purposely the payment of a reasonable sum according to the established rule, custom or practice of the said locality or industry, as for the case of a dentist. Furthermore, paragraph 14(f) of the code of practice as in the Employment Relations Act 2008 (as amended) clearly states that it is the management's responsibilit to reward workers for their creativity, skill acquisition and productivity gains. Labour Law and Industrial Relations | 83As the passing of little streams shine clear despite their long treading paths, we often wonder how? —But when we trace back the trails, we see and understand that it is up to the source primarily to shine out clearer. By definition and rights, the source responsible for an employee’s remuneration is his/her respective employer, Guided with the undimmed clearance and belief of Fairness of Equality, the employer must make certain the very workers at his responsibility: = required to do the same tasks/roles/activities, - and have, actually completed these undertakings, are remunerated same, no more, no less, (Section 20 of the Employment Rights Act 2008 (as amended)). The quest for Social Justice in this matter of equal recognition would collapse with any intrusion of materialism and competition that would sprout. If this matter that remuneration is considered as a needful recognition, more of it should be eared on the basis on meritocracy and in earnest manner. And where a worker is remunerated for his work, the employer in question or her remuneration. shall not restrict or impose upon the worker where he or she is to spend ‘* To ensure safe working conditions Employers are under the obligation to provide their employees with reasonable and safe working conditions. This is extend by virtue of paragraph 14(a) of the Code of Practice as in the Employment Rights Act 2008 (as amended) and reads as follows: ‘It is management's responsibility to provide the appropriate conditions for productivity enhancement by improving the working conditions and the workplace environment’. This is equally supported by paragraph 17 in that ‘Management shall provide a safe workplace and decent work in conditions of freedom, equity, security and human dignity to workers.’ These provisions extent to providing proper machinery and equipment to employees in order to prevent any hazardous situation. For instance, in a steel manufacturing plant, all employees are to be provided with the necessary gloves, protection googles and safety shoes. ‘The prerequisites in terms of health and safety are further provided in the Occupational Safety and Health Act of 2005 where # number of provisions are included in order to provide the necessary protection to employees in different sectors engaging in work of different nature. Additionally, there are a number of regulations aimed at the same; these include OSH (Safety of Scaffolds) Regulations 2013, OSH (Safety of Lifts at Work) Regulations 2012, Labour Law and Industrial Relations | 84OSHW(Woodworking Machines) Regulations 1989, OSH (Transportation of Employees) Regulations 2014 amongst others. Protection of employment and fairness (paragraph 15 and 16 of the Code of Practice as in the Employment Rights Act 2008 (as amended) ‘As part of the legal and moral duty that an employer has towards his employee, the former should reconcile the ultimate profit making motive with that of the protection of the employment of his employees. Laying off workers with the sole motive of decreasing direct cost and thus increasing profits is considered to be a legal offence whereby if an employee feels that he has been the victim ofa layoff on the aforementioned ground, the latter could and should go to the courts for redress. (Not a case of occupational requirement) Furthermore, any employer shall preach and, most importantly, adhere to the concepts of good governance, such as transparency, accountability, responsibility, faimess and social responsibility. The concept of faimess shall equally be demonstrated when an enterprise is undergoing a restructuring, including any merger and closure, Labour Law and Industrial Relations | 855. Rights Of An Employer Employment Relations Act: Part 4 - Protection of Fundamental Rights, Sub-Part B-Basic Employer's Rights to Freedom of Association; Section 32 reveals by enlightenment of the employer, he/she may unarguably associate him/herself or start a Trade Union of employers. In light of this free choice, no previous authorization or discrimination in the choice of which Trade union or of his/her selection into that Trade union shall be negatively adjusted by another body. ‘The Trade union of employers, upon agreeableness of most members, may join other Trade union/s of employers, to form unitedly a federation of employers. The federation of employers is, referred as an association of Trade unions of employers. This association can further grow in number, for more Trade union of employers can join the federation of employers, When two or more federations of employers join together, they form a confederation of employers. Which within the confederation also, other federations of employers may aspire to join. The confederation of employers is thus referred in tum as an association of federations of employers It is also provided that any trade union of employers may join hands with any Intemational employers! organisation, To accept and render service, financial or other contributions between the two is encouraged. s an aspiring Human Resource manager and certainly as a middle-man between the employer and the employee...or in a better balanced position to promote benefits for the two parties, we would advise the employer to join a trade union of employers. As this affiliation has the benefits of sharing co-operation within an industry of employers or even international levels. A supportive approach from this alliance rather than unhealthy competition in an industry among employers, may help to: ‘identify trends in employment relations; helping to anticipate and keep abreast of changes, assistance through advisory service on all aspects of employment relations. ‘find a better common-ground of interaction with the Trade union of employees, which may be more conclusive to maintain effective arrangement for settling disputes or negotiations. In other Labour Law and Industrial Relations | 86words, where both unions fully understand cach unions’ claims and where both try to compensate one another rather than combat each other. ‘A worker and an employer can work hand in hand, and this speaks with perfect truth when the duties of each are taken into consideration, The duties have corresponding effort from one side to the other. Hence valuing a role-mannered justice system and interaction peace-keeping practice. The earnest effort from the worker (act of diligence) and selflessness duty of the employer (vicarious liability), should be their only helplessness towards one another. In that way, a socially responsible and justice workplace can be secured, along with co-operation with trade union, professional associations for a better way to prevent and resolve conflicts, timely, orderly and for the best interest of the parties concerned. Labour Law and Industrial Relations | 876. Determinate and Indeterminate Duration of an Agreement When drawing up a contract of employment, some important elements need to be taken into account. These include the fact that the contract needs to be a voluntary one drawn up between two legal personae to perform certain specified or implied duties. Amongst these essentials lies the element of the duration of the contract which might be of specified (determinate) or indefinite (Indeterminate) duration, Contract of determinate duration A fixed-term contract of employment is one which has a predefined start and an end date and which is terminated after a specific event (other than termination). Such contracts should only be used for transparent and objective reasons where there is a genuine fixed-term or temporary need. In these circumstances, both parties (employer and employee) should agree that the contract is to be fixed-term before it begins According to the section 5, subsection 3A and 3B of the Employment Rights Act 2008 (As amended), A worker may be engaged in an agreement with an employer for a stated period of time a In respect of a particular piece of work. Case Si John is employed as a plumber for the installation of internal water pipes at ABC Ltd. The aro: duration of the installation would take 7 months. As such, ABC Ltd is deemed to have entered into an agreement with John for a period of 7 months, for the purpose of the installation of pipes. Once the installation is over, John’s fix term contract is deemed to be over. bo in replacement of another worker who is on approved leave or suspended from work Case Scenario: Mary, an assistant in a magazine editing company is currently on matemity leave following her delivery, In the meanwhile, the employer of Mary is employing Suzan, as a replacement for Labour Law and Industrial Relations | 88Mary who will resume work once her leave period is over. The leave period of Mary being of 3 months, Suzan is provided with a written agreement of 3 months. « in respect of work and activity which are of a temporary, seasonal or short-term natures Case Scenario: Michelle is employed by Cabana hotel during summer in order to maintain their cooling and ventilation system due to the high humidity and rising temperatures. Once winter sets in, there is no need for such maintaining. As Such, Michelle is provided with a contract from October to February by Cabana hotel. 4. for the purposes of providing training to the workforce; Case Scenario: Mike, a professional web programmer is provided with a contract of 6 months by Datacell, a leading website hosting company in order to provide its employees with updates and training in programming in order to avoid trailing to competitors in the fierce market for website hosting, & In accordance with a specific scheme set up by the Government or a statutory corporation. B. Contract of indeterminate duration As opposed to a contract of determinate duration, a contact of indeterminate duration is one with no ending date. Basically, successive fixed-term contracts are presumed to have been concluded for an indefinite period. According to section 5, subsection 3 of the Employment Rights Act 2008 (as amended), where a worker, other than a migrant worker, has been continuously employed by an employer under one or more determinate agreements for more than 24 months, in a position which is of a permanent nature, the agreement shall, with effect from the date of the first agreement, be deemed to be of indeterminate duration. Labour Law and Industrial Relations | 89In other words, if an employee is employed on one or more fixed term contraet for more than 2 years, then any attempt to give that employee a further fixed term contract is unlawful and void and the employee is entitled to a contract of indefinite duration, ase Scenario: Rosie works as a chef in a restaurant owned by celebrity chef Con Carney. Rosie is a great chef and is the real secret behind Con’s success. When Con disappears nightly in a plume of exhaust fumes of his luxurious car, itis the delights produced by Rosie that takes over to please the taste buds of customers. Rosie has just commenced her fourth year of employment, unlike her co- workers, but she has received a fixed-term contract each year beginning on January Ist and ending on December 31st. Rosie has a feeling of uneasiness and wants a singular contract that is more tangible and secure. She recently applied for a car loan and her bank refused on the basis, that they considered the series of fixed-term contracts to signify a precarious employment relationship. So what can Rosie do? In this instance Rosie will be seeking to address the use of continuous fixed term contracts and so will be seeking a contract of indefinite duration from her employer, chef Con Camey in the order to prevent any abuse of excessive continuous fixed term contracts. The obvious value of a contract of determinate duration to Rosie would be that it would somewhat alleviate the insecurity surrounding her position at each year’s end and strengthen her hand when dealing with credit institutions. It would be unwise to suggest that a contract of determinate duration offers ultimate job security to Rosie given the volatile nature of the restaurant trade, Labour Law and Industrial Relations | 907. Variation Of Agreement A contract of employment is consensual. The parties may agree on whatever terms they wish, provided they are consistent with the nature of the employment relationship. Once they've so agreed, the terms of the contract are fixed in the sense that neither party may unilaterally vary them. The relationship is based on agreement and only any variation of the terms of that agreement must be by mutual consent, If the employer does attempt to impose a change without secking agreement, he acts in breach of contract. A Agreeing on variation of collective agreement The content of an existing collective agreement cannot be changed by a ‘third party’. It was only through mutual consent of the parties to the agreement that the very content of the existing agreement could be altered. ‘The right to strike and reporting of labour dispute prevent any attempts to change any conditions of work while a Collective Agreement is in force; it opens the door for employers to challenge the very issues upon which agreement was concluded in an existing collective agreement. If it is clear that the change proposed by the employer would be a variation of contract, he should try to negotiate the agreement of the employees. Most employers in these circumstances wish to achieve a smooth, effective change in the working practices without causing loss for operation, resignations or dismissals, According to paragraph 113 (a) (i) of the Fourth Schedule of the Employment Relations Act (EReA), bargaining in good faith would imply that the trade union or the group of trade unions and the employer to meet and discuss meaningfully any variation of the agreement. Where a party to a collective agreement which is in force refuses a variation of the agreement (Section 58 (2(a) of principal act amended), any party may apply to the tribunal for a variation of the agreement and the tribunal, on hearing the parties, shall vary the agreement where it is satisfied that the Labour Law and Industrial Relations | 91variation is warranted in accordance with the result of such circumstances as are provided in the agreement and where there is substantial change of circumstances which warrants such variation. Labour Law and Industrial Relations | 92‘ermination Of An Agreement How the contract of employment is terminated? ‘© On expiration of the agreed period & On completion of the specified task Section 36 (1) states that the employee was employed for a fixed period of time not exceeding 24 months and therefore shall be deemed to work later after the assigned tasks has been completed(section 5(3A)(a) of the Employment Rights Act 2008) unless renewal of the contract + By notice duly given An employer shall notify an employce of his termination by stating the reason of doing so. Section 37 (1) implies that the agreement may be terminated on the day the notice of the agreement has expired. * By summary termination ‘An employer can dismiss an employee without notice (summary dismissal) if he or she is guilty of a gross breach of duty or other serious breach of the employment contract. On summary dismissal, the employment relationship is terminated with immediate effect, as opposed to on ordinary dismissal, when the employee is entitled both to receive pay and to continue working for the period of notice. The reaction is therefore reserved for the more serious breaches of the employment contract. However there is no summary dismissal in our law because section 38 of the Employment Rights ‘Act 2008 protects the worker as the worker has the opportunity to fight back against any charge made on him, For example: a woman may not be dismissed from work due to absences during maternity leaves according to section 38(1) (b) of the Employment Rights Act 2008. + By repudiation In instances where a party to a contract categorically states that they are unwilling or unable to perform the contract, is perhaps the most clear cut example of repudiation. Conduct amounting to repudiation can also include the words used, or the conduct of a party that can be interpreted as acts of repudiation. When a party to a contract is unwilling or exhibits behaviour which Labour Law and Industrial Relations | 93,suggests that they are unwilling to perform their contractual obligations, the innocent party has the right to terminate the contract due to repudiation. © By mutual agreement Parties to an agreement always have the option of terminating the agreement by mutual assent. If the contract is no longer being followed, if the parties have ceased business operations or if the contract can no longer be faithfully performed, the parties may wish to formally terminate the agreement in writing. Termination will not affect any liabilities for breach of contract that occurred before the contract is ended, ‘+ By the death of either party An agreement that occurred between two people shall be said to be terminated upon the death of the one party. © By insolvency Insolvency events affect not only the insolvent company, but all of those involved in the project, supply chain, from suppliers and subcontractors who have not received payment for goods and ‘works supplied, to owners and developers who experience delays and increased costs to their projects. This may give rise to a substantial breach and in turn the right to terminate, such right to terminate will arise sometime after the insolvency event itself may have occurred. ‘Impossibility of Performance ‘A contract typically requires one or more parties to do something, which is called performance. For example, a company may hire and sign a contract to have a public speaker talk at a company event. Once the public speaker fulfills his duties agreed upon in the contract, it is called performance. If for some reason it is impossible for the public speaker to fulfill his duties, it is called impossibility of performance. The company has the right to terminate the contract in the case of an impossibility of performance. Labour Law and Industrial Relations | 94In replacement of another worker who is on approved leave or suspended from work and the latter resume work later and in respect of work and activity which are of a temporary, seasonal or short-term nature(section 5(3A)(b)(c) of the Employment Rights Act 2008. ‘An employer is required to inform a replacement employee that they are engaged in a temporary basis and that the employee, who has taken for example parental leave, has the right to return to their pre-leave position once their period of leave has come to an end which on that day shall be the termination of his contract of employment, Dismissal can be a termination but termination cannot be dismissal. Dismissal means that: «An employer has terminated a contract of employment with or without notice «An employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it + Anemployer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment + An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another + An employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.(constructive dismissal) Labour Law and Industrial Relations | 95,9. Various Reasons for Termination of Contract A contract s a legal document that binds at least two parties to one another. A contract requires one or both parties meet obligations detailed in the contract before it is completed. Only the parties involved in the agreement may terminate a contract. A number of expressions are commonly used to describe situations when employment is terminated, These include "let go," "discharged," "dismissed," "fired" and "permanently laid off." A contract of employment ean come to an end in the following ways . ‘On the expiration of the agreed period fier the specific period assigned for the contract is over, the contract also come to an end and no notice is needed. + Oncompletion of a specific task + Bynotice duly given Both employee and employer before termination a contract need to give a reasonable notice which is of 30 days according to the Section 37 in the Employment Rights Act. The notice can be verbal or written. And if the employees or the employers do not serve their notice, they will have to pay the other party the amount of pay the other party would have eamed if the contract was not terminated. * Summary Termination ‘Summary termination arises when the employer declares that he is no longer bound by the contract, * By Repudiation One of the party bind to the contract has not been able to perform to the agreement, and this, allows the other party to terminate the contract. It is for instance, serious misconduet which made the employment relationship intolerable. Labour Law and Industrial Relations | 96* By Mutual Agreement ( Consensus by both parties) * By death of either party ( the contract can no more be performed) * By insolveney * By supervening impossibility of performance ( permanently unable to perform due to illness or disability) * By state action (For example: One of the patties is imprisoned for a long period causing incapacity to perform). However, according to Section 38(2) and Section 38(3) of the Employment Rights Act (2008), No employer shall terminate a worker: (@) For reasons of misconduct, criminal charges, poor performance unless- (i) He can find no other option other than dismissal, however, in consideration of good morality (ii) The worker has to been given an opportunity to justify his part (iii)The employer should notify the employee, within 10 days of the awareness of the misconduct (ivyThe worker should be given at least 7 days’ notice to justify the charge made against him (v) The termination is effected within 7 days of the justification on behalf of the employee or an oral hearing of the case. An employee who has been subject to termination of employment is rightful to have in his assistance, a representative of his trade union and/or a legal assistance, or, an officer, where he is not assisted by any of the two mentioned, The oral hearing of the case has to be made by a person who has not been involved in the investigation as well as being able to make an independent decision, Proceeding the decision of the oral hearing, the employer and the employee holds the right to claim for remuneration of compensation, Where the employee has been found guilty of misconduct, he/she may be liable to suspension by the employer, whereby the worker is entitled to remuneration during the period of suspension. Labour Law and Industrial Relations | 97The procedure for termination of employment under section 38 of the Employment Rights Act (2008) comprises of two parts. First, “the opportunity to answer the charge” and second the delay within which the dismissal should be effected. Bundhoo v Mauritius Breweries Ltd (1981) MR. 157 ‘The court held that the opportunity to answer the charge applies only to dismissal for misconduct and not to cases where the employee’s contract of employment was terminated in the interest of the undertaking, In that respect, Camerlynck, Tome 1, le Contrat de Travail, note 200 reads as follows: “De plus meme si une procedure disciplinaire a été prevue dans ’entreprise, elle devient inapplicable dé sl’instantoi le licenciement du salarié n’a pas été prononeé a ce titre, mais dans Vintérét du service que lemploycurestseul maitre d’ organiser comme il I’entent pour en assurer Je bon fontionnement”, Selvon v. General Construction Co. Ltd (1994) SCJ.381 The court held that the hearing envisaged under section 38 of the Employment Rights Act is not applicable where termination of the employment is due to the “poor performance of the employee and failure to improve” which is not a dismissal for misconduct. ) Where the alleged misconduct is due to criminal proceedings, i, The employer should provide to the employee, the opportunity to answer to any charge made against him in relation to the misconduct. ii, The employer shall (without fault) inform the worker of the charge against him; within 10 days on which he becomes aware of the conviction by the court. iii, The worker should be allowed, by the employer, a minimum of 7 days’ notice, within which, the employee shall answer the charge against him; and iv, The termination of the employment agreement shall be terminated within; and not later than 7 days after the charge has been answered; or, v. Where the charge is subject to an oral hearing, the termination shall be effected within 7 days from the day the employer becomes aware of the misconduct. Labour Law and Industrial Relations | 98Where the employee has been accused of eriminal charge, he/she legally deserves an opportunity to justify and answer the charge of misconduct made against the latter, and that shall be, a minimum of 7 days’ notice, Further on, the employee is equally rightful to be informed by the employer within 10 days, of the charge made against hi starting from the day the employer ‘becomes aware of the decision of the court, The contract of employment shall be terminated not later than 7 days where the opportunity to answer the charge has been provided or where the employer becomes aware of the misconduct in case of an oral hearing, According to Section 39B of the Employment Rights Act (2008), an “employer” is a person taking into employment a minimum of 20 workers under his responsibility. An employer to reduce the number of workers in his employment either temporarily or permanently/ closing down his enterprise, should immaculately give a written notice of the intention to the Permanent Secretary accompanied by a statement listing the reasons for the reduction of workforce within, the time limit of 30 days before the reduction or closure of the enterprise. An employer shall not reduce the number of workforce by any way: either temporarily or permanently without the consultation of a trade union recognised under section 38 of the Employment Relations Act; to explore the possibilities of avoiding the reduction of workforce by any other legal means such as: ‘Restrictions on recruitment; «Retirement of workers beyond the retirement age; ‘Reduction in overtime; ‘© Shorter working hours to cover temporary fluctuations in manpower needs; or ‘« Providing training for other work within the same enterprise. Where there is no solution other than redundancy, the employer should establish a list of those who are to be made redundant on the basis of the principle of last in first out; given under the notice of 30 days prior to the termination. An employer is due to compensate his employee under ‘a mutual agreement by both the employer and the employee by way of settlement. In the absence of settlement for payment of compensation for an employer, the latter may: 1. Join the Workfare Programme in accordance to the Remuneration Regulations; or Labour Law and Industrial Relations | 99IL, Register a complaint with the Permanent Secretary within 14days of the termination of his employment whereby the Permanent Secretary may on reasonable cause shown, extend the time limit of the Workfare Programme. ‘The Permanent Secretary shall then enquire into the complaint to promote a settlement between both parties. Where no settlement is reached between both parties, the Permanent Secretary may or may not refer the matter to the Tribunal, depending on his opinion whether or not the worker has a bona fide (good faith) case. Following, he shall the advice the worker to apply for admission to the Workfare Programme accordingly. If a worker with a bona fide case establishes proceedings to the court claiming for severance allowance, The Permanent Secretary shall entitle to the worker, admission to the Workfare Programme without referring his case to the Tribunal; provided he is a worker defined in section 40 of the Employment Rights Act, Matter referred to the Tribunal by the Permanent Secretary shall proceed to hear the case and give its award within 30 days of the date of referral; where in exceptional cases the Tribunal may extend the date of award for another period of 30 days, making a total of 60 days. Where the reduction of workforce is unjustified, the Tribunal orders, that the worker be reinstated in his former employment with payment of remuneration from the date of termination to that of reinstatement of his employment; with the consent of the employee as well be paid severance allowance accordingly. If the termination is found unjustified and in breach of the other terms and conditions, the tribunal may order the employer to pay severance allowance and he shall, unless reasonable cause is provided, pay to the worker who has been terminated; a sum equal to 30 days’ remuneration, with severance allowance where applicable This se mn of the Employment Rights Act sums up by stating that where the employer and employee meet consensus of settlement, the worker shall not be entitled to join the Workfare Programme nor shall the employer be required to pay the recycling. However, if no settlement, has been made, the employer shall pay the recycling specified in Section 47- A fee paid to the ‘National Pensions Fund for credit to the National Savings Fund according to the rate specified in the Eighth Schedule in respect to the worker. Labour Law and Industrial Relations | 10010. Remedies to an Employee in Case of a Breach of Contract Employment contracts are written or implied agreements between employees and employers setting forward the conditions of a worker's employment. An employment contract can be breached by either an employee or an employer. A breach occurs when one side fails to live up to the obligations provided by the contract, The breach of contract from the employer may arise from the time when the employer either (J) omits to act (LI) doesn't act reasonably (IID) deliberately omits to act. There is a difference between an "omission" and an “act”. An "omission is more like oversight (failure to notice) while "omit to act" is more like capriciously (with intention), And in case of breach of contract by either the employee or the employer, the law gives the innocent party a variety of remedies at correcting the effects of such breach that is the injured party get the end product that he would have obtained had the contract been kept. And the remedies available to the employee are as follows: 1, Resignation Given that an employer can terminate a contract in case of breach of contract, an employee also has the same right to resign. He is also allowed to resign without any notice if the employer has, committed a fundamental breach. According to law, any employer committing fundamental breach permits the employee to terminate the contract and also sue for damages such as balance of the notice period in case of indefinite period and balance of contract period in case of a fixed term period. Thus if the employer is guilty of conduct which is a major breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, the employer’s conduct towards the employee is such that the employee can no longer reasonably be expected to continue in his employment or the employer exerts undue influence on the employee to resign, then the employee is entitled to treat himself as discharged from any further performance, If he does so, then he terminates the contract by reason of the employer's conduct. Labour Law and Industrial Relations | 101Western Excavating (ECC) Ltd v Sharp {1978} IRLR 27 According to this case, the law allowed two employees, both wife and husband to resign with immediate effects due bad behaviours from their employer that they could not continue to work in the organisation anymore. 2. Interdicts An interdicts is a court order that may be sought in order to enforce a right. It is usually sought by way of application proceedings which are relatively inexpensive and are far less time consuming than trial proceedings. It takes one of two forms: mandatory or prohibitory. A ‘mandatory interdict is an order of court instructing a party to do something or to perform certain actions. A prohibitory interdict does what its name says: it is a court order instructing a party not to do something. A prohibitory interdict may mean, for example, that an employer is prohibited (or interdicted) from proceeding with a disciplinary enquiry or a dismissal In this case employees can apply for interdicts against their employer to prevent a breach, threatened breach of contract of employment or any illegal acts from their owner. For instance, employees can apply for interdicts against lock out and retrenchment. The court agrees for interdicts, when it might leads to a clear right, beyond repair harm to the applicant if not given. 3. To sue for wages due ‘An employee may claim wages that are due to him and unpaid given that the employee has, correctly and completely tendered their services to their employer. Also it has been held that an employee who unlawfully leaves employment or has rendered grossly faulty service cannot claim wages. Thus, if an employer did benefit from the employee’s service even if the employee was dismissed for gross misconduct, the obligation to pay wages due up to the date of dismissal is still applicable. Wages due will include also accrued leaves and other benefits as well such as, bonus. Concerning the wrongful termination of a contract of an employee without any good cause or proper notice, the employee may take legal action for damages and also be entitle to eam the wages they would have eamed if the contract did last to its end. And when the dismissal is considered to be substantively unfair that is there is no valid reason for the dismissal, the employee is entitle to earn an amount equal to actual loss of salary as well as a maximum of Labour Law and Industrial Relations | 102further 12 months wages. And when the dismissal is automatically unfair, the employee is entitle to be given not more than the corresponding of 24 months’ wages. 4, To Sue For Damages When an employer is in breach of any duties he owes to his employees, the employees may consider the contract as cancelled and sue for damages such as incidental losses, relocation expenses or even loss of future income. An employee can also sue his employer in the following situations: defective work products and tools, exposure to toxic substances in the workplace, discrimination, retaliation, and wrongful termination among others. 5. To Apply For Reinstatement Reinstatement, in employment law, refers to placing a worker back in a job he has lost without loss of seniority or other job benefits, The employee should be returned to the same job or one that is "substantially" similar and the reinstated employees resume employment on the same terms and conditions that prevailed at the time of their dismissal. Thus in case of an unfairly dismissed employee, the law orders the reinstatement of the employee unless the employee does not wishes to be reinstated for reasons such as intolerable environment, not reasonably practical for reinstatement and dismissal was considered as procedurally unfair ( whether employee had a valid and fair reason for dismissal but did not follow fair procedures). 6. To Apply For Relief Under The Company’s Grievance Procedure Grievance procedures are a means of dispute resolution that can be used by a company to address, complaints by employees. A grievance procedure provides a hierarchical structure for presenting and settling workplace disputes. The procedure typically defines the type of grievance it covers, the stages through which the parties proceed in attempting to resolve matters, individuals responsible at each stage, the documentation required, and the time limits by which the grievance must be presented and dealt with at each stage. Labour Law and Industrial Relations | 103,Grievance procedures do not necessarily have to be so formal and elaborate, and in fact, overly formal grievance procedures often discourage the airing of disputes in a timely manner. In small businesses, the procedures may consist of a few lines in an employee manual or the designation of. single ombudsman to deal with problems as they develop. Peer review of employee concerns is another popular way to address grievances. On the other hand, some larger companies may create an entire department dedicated to fielding complaints from employees or customers. Whatever form they may take grievance procedures are intended to allow companies to hear and resolve complaints in a timely and cost-effective manner, before they result in litigation, Thus one of the remedy available to employee is to make use of the company’s grievance procedure. Situations it might be used can be for discrimination, sexual harassment or even under duress from employer. And the solution is done through mediation, which is a technique that allows the parties to resolve their differences with the help of an employment mediator. A ‘mediator may talk to both parties together or separately. The mediator should listen to both sides of the story, clarify the needs of each party, encourage the parties to discuss together how they each see the situation, and help the parties to reach a solution that is acceptable to them both. 7. To Resort to Private Dispute Resolution Private dispute resolutions are procedures for settling disputes by means other than litigation through arbitration and mediation. Mediation also known as conciliation is the fastest method. Unlike litigation, mediation provides a forum in which parties can resolve their own disputes, with the help of a neutral third party. Arbitration more closely resembles traditional litigation in that a neutral third party hears the disputants’ arguments and imposes a final and binding decision that is enforceable by the courts. And if it was already agreed to resort to private dispute resolution in the collective agreement or employment contract, the employee is bound to make use of it as, the court will not grant any interdicts to the employee. 8, To Withdraw Labour The final remedy available to an employee in case of breach of contract is the permission to withdraw labour. This refusal to work comprise as neither a strike nor a disciplinary crime. The right to strike is given by the law, and whenever employees decides to strike over one-sided Labour Law and Industrial Relations | 104