Daniel Fok kan
PhD, LLM, LLB
On the 1st of May, we shall once more be celebrating the trade union movement. Since the Industrial Associations Ord. of 1938, the first law to formally provide for the formation of trade unions, unions have come a long way. Their actions have no doubt had an impact in shaping our labour laws, but over the years unions have had their ups and downs. This article examines their place today in the scheme set out by the Employment Relations Act (ERA) for regulating collective rights.
That scheme is as follows – 1) the right of individual workers to join a union, 2) the right of the union to obtain recognition from an employer if it meets certain thresholds of representativeness, 3) the right of the recognised union to negotiate and conclude collective agreements with the employer and finally 4) the right to enforce these rights through the labour dispute mechanism.
Unions are central in relation to points 1 to 3. An analysis of the decisions of the Employment Relations Tribunal (ERT) over the past 6 years reveals that this is far from being the case when it comes to point 4. From 2018 to 2023, the ERT made 79 awards in relation to terms and conditions of employment. Only 5 of these awards related to a collective labour dispute reported by a union. In 74 cases the disputant was either an individual worker or a group of individual workers and in only 2 of these cases were the workers represented by a negotiator or a member of the executive committee of the union. In 72 cases, therefore, the worker was either on his own or represented by a counsel. It is quite possible that focusing on ERT awards only gives a distorted view of the situation. Unfortunately, these are the only data readily available and in any case, as distorted as the picture may be, it does give a glimpse of the situation.
Given that unions are central to the scheme put in place by the ERA, it is surprising that when it comes to the enforcement of the collective rights, they are conspicuously absent, leaving the labour dispute mechanism being driven by individual workers. This phenomenon is, however, not new and dates back to the days of the Industrial Relations Act (IRA) though then to a much lesser extent. It results from the system of compulsory arbitration put in place by the law in order to resolve labour disputes. Under the IRA, labour disputes were reported to the Minister of Labour who by systematically referring all disputes either to the Industrial Relations Commission for conciliation or the Permanent Arbitration Tribunal for arbitration, ensured that all disputes were compulsorily dealt with by one or the other of these two institutions. Under the ERA, labour disputes are reported to the Commission for conciliation and mediation. Should the dispute remain unresolved, at the request of the party reporting the dispute the Commission “shall” refer it to the ERT. With a system of compulsory arbitration, an individual worker acting on his own is thus assured that he will have his day in court, or in this case before the Tribunal.
In contrast, in English law, though an individual labour dispute may perhaps be theoretically possible, such a situation is in practice unheard of. English law generally does not provide for the compulsory arbitration of labour disputes. If a dispute remains unresolved, unless both parties agree to voluntary arbitration, industrial action is the only way out. In such a context, an individual worker would need the support of his union if he wants to make any headway with his individual grievance. There is consequently no incentive for him to go on his own. It is to be noted that English law in any case refers in the definition of a trade dispute to the “workers” in the plural.
New conditions of employment
It is submitted that allowing individual workers to drive the labour dispute mechanism does not serve the interest of employment relations as it has the effect of weakening the unions. To demonstrate this point, we shall make a brief study of some of the cases heard by the ERT. These fall broadly into three categories. There is a fourth category, namely cases of reinstatement, which admittedly is individual by nature. Arguably the appropriate forum for these cases is the Industrial Court, not the ERT.
The first category relates to a demand by an individual worker for new conditions of employment, mainly with regards to salary. 8 cases fall in this category. Considering that the objective of employment relations is the determination of the conditions of employment of workers collectively, not individually, these cases should not have happened. Worse still, in 6 of these cases the demand of the individual worker was contrary to those provided by the collective agreement applicable or had been discussed previously by the union with the employer. Surprisingly in only one of these cases was the union joined as a co-respondent. Unsurprisingly, all the cases were set aside by the Tribunal and in one it commented that in such cases “there is a real risk of undermining collective bargaining within an enterprise”. In another, the Tribunal added that it “will be very cautious to intervene in a matter involving a collective agreement entered into by a recognised trade union behind the back of the said trade union and following a dispute reported by an individual worker or a group of individual workers”. Since collective agreements are binding, it is submitted that it would only be in extreme circumstances, for ex. discrimination on a prohibited ground, that the Tribunal would be able to intervene. It is thus surprising that such disputes should have been allowed in the first place.
There are 14 cases in the second category where the issue in dispute was the non-appointment or the non-promotion of the worker concerned. Two of the points raised in these cases, namely seniority and the criteria used by the employer, are clearly of interest not only to the disputant but also to all the other workers who often have divergent interests on these issues. Even though unions are generally reluctant to intervene in such matters as they put two or more workers in competition, it is submitted that the collective interests of the workers should prevail over the individual interests and that the representative of that collective interest can only be the union. In a 2018 case, the disputant questioned his non-appointment to a post considering himself to be senior to those who were appointed. It turned out that the criteria for determining seniority had been negotiated with the recognised union. Given the seniority list, which, as ruled by the Tribunal, “becomes the status quo between the parties for competitive status purposes”, whatever be the merits of the claim of the disputant, it was clearly doomed to fail.
The third category, which makes up the bulk of the individual labour disputes, relates to the application and in many cases the interpretation of the conditions of employment, contained mostly in collective agreements or the PRB reports. Given that collective agreements are negotiated and signed by the unions, it seems odd that their application and interpretation is in practice in the hand of individual workers. A 2019 case dealing with the redeployment of a worker unable to perform the duties of his original post following an accident is the perfect example where the intervention of the union would have been essential. The claim of the worker was that he should have been assigned to a post where he would have been able to earn a revenue “more or less equivalent” to his original post. In such a case, dealing with the determination of wages and the assignment of posts, the individual rights of the worker may be in conflict with the rights of the other workers. Whatever rights the individual worker may have in that regard would depend on the collective agreement and any accommodation made in his favour should not have the effect of causing an undue burden on the other workers. The case was rightly set aside by the Tribunal but it is clear that this is a dispute that would have been impossible to resolve in favour of the worker without the bigger collective picture that only the union can provide.
The exclusive right to collective bargaining
The recognition of a trade union, which is based on its representativeness, confers on the latter the exclusive right to collective bargaining. The right to initiate a strike action also belongs to the union. It is submitted that the right of collective representation should also cover the exclusive right to the dispute procedure as a whole, as is the case in many jurisdictions. This means that the employer will have the obligation to deal with the union in all disputes. In Québec, any employer who by-passes the union in such matters commits an “entrave aux activités syndicales”. This is in contrast to what is happening in Mauritius where the system has an inbuilt incentive for the employer NOT to deal with the union. Why bother to discuss with the union if an individual worker may eventually go on his own and report a labour dispute?
Should the unions be given such an exclusive right, it does not mean that individual workers will be at their mercy. Unions have a duty of fair representation with regards to all workers. If unsatisfied with the actions of his union, a worker will have the right to enter legal proceedings against the latter.
The extremely low rate of success before the ERT for individual labour disputes strengthens the case for granting the exclusive right to labour disputes to the unions. Out of the 72 individual labour disputes heard over the past 6 years, the ERT ruled against the individual workers in a staggering 66 cases, giving a rate of success of only 8 %. By any standard, this is low. If anything, it suggests that there is a waste of resources for every one, the employers, the State and even the workers, considering that their chance of winning in many of the cases is near zero. In contrast, out of the 7 cases where the union was involved, 3 ended favourably for the workers, giving a rate of success of 43 %.