Some issues relating to the future institutions to be set up under the draft Employment Relations Bill, namely the Employment Relations Tribunal replacing the Permanent Arbitration Tribunal (PAT), the Commission for Conciliation and Mediation replacing the Industrial Relations Commission (IRC), and the National Remuneration Board, will be examined in this article. We shall start with an issue common to both the Tribunal and the Commission, namely delays.

■ Delays

Delays have indeed been identified as a persistent problem before both the Tribunal and the Commission. The solution proposed by the draft bill is to impose strict time limits within which the two future institutions are to perform their duties. Some applications, for example recognition (S.40 (4), S.41 (3)) and access to workplace (S.42 (6)) cases, shall have to be determined by the Tribunal within 30 days, while others, for example agency shop (S.49 (8)) and unfair labour practices (S.59 (3)) cases, shall have to be determined within 60 days. Arbitration awards in ?normal? cases shall have to be made within 90 days (S.74 (1)). A strict delay of 30 days is also imposed on the Commission in its investigation/conciliation/mediation function (S.73 (3)). In some cases the two institutions are explicitly allowed to extend the time limit while in others the draft bill is silent on the issue. This silence is probably to be interpreted as meaning that in those cases the prescribed time limit cannot in any circumstances be extended. Where power to extend is granted two formulae are used; firstly cases where the time limit can only be extended where there are exceptional circumstances (for example, recognition cases) and secondly cases where the time limit can be extended where the circumstances so require at the request of the complaining party (conciliation cases) or with its consent (arbitration cases).

Problem solved? Well not really. It must be recognised that it is inherently difficult to impose strict delays on institutions performing quasi-judicial functions. Delay or no delay, at the end of the day they will have to come up with a decision and one cannot invalidate it simply because it was taken after the prescribed delay. Otherwise parties will be left in limbo with further ? delays! The draft bill recognises this and provides that orders, awards, recommendations or decisions made outside the delays provided may not be challenged or declared invalid for such reason (S.105(2)). Given its limited jurisdiction, dealing as it is only with conciliation, it is not expected that it will be an issue before the Commission. No decision is indeed expected of it. At the end of an unsuccessful conciliation process, it is only required to submit a report to that effect to the Permanent Secretary of the Ministry of Labour and Employment Relations. Before the Tribunal, however, given this provision, in spite of the strict time limits, delays may still be a problem. Under the current IRA, even though the law did provide that ?the Tribunal shall, with all diligence, inquire into the dispute and make an award on it?, this did not prevent delays from occurring.

In order to facilitate resolution of industrial disputes from the substantive angle, it is submitted that the same institution should undertake both the conciliation and the arbitration process with the contentious issues being dealt with by a different one, having the status of a court of law.

So what is the solution? One may look at the causes of the delays. For example, lawyers are often blamed for the delays with their requests for postponements in order to find dates that suit them. If that is so, one can consider disbarring them from appearing before the Tribunal or the Commission. This is the case before the South African Commission for Conciliation, Mediation and Arbitration.

All things considered, however, one must recognise that there is no miracle solution to this problem. What can be done, however, is to impose a duty upon the Tribunal to give in all cases the chronology of events and the reasons for any delay. This is the solution adopted in English law in relation to the Central Arbitration Committee (in spite of its name this body deals essentially with recognition and access to information cases). The idea is to bring out the problem in the open and thereby hope that all parties will act in a more responsible manner.

■ The Commission for Conciliation and Mediation and the Employment Relations Tribunal

Compared to the Industrial Relations Commission, the work of the Commission for Conciliation and Mediation has been considerably lightened. It keeps the conciliation and investigative functions to which has been added an advisory function. It is difficult at this stage to determine how successful this advisory function will be, but I suspect it will all depend upon the means given to the Commission and the extent to which it will be able to obtain the respect of employers, trade unions and employees. The main function will probably be the conciliation one.

The Tribunal?s functions, on the other hand, have been considerably increased. It takes over from the Commission recognition disputes and is in fact responsible for all orders to be made under the draft bill, ranging from decisions relating to the registration of trade unions to arbitration of industrial disputes passing through all sorts of orders in relation to the bargaining process.

On the whole the draft bill preserves the current structure with a reshuffling of functions. One of the causes of the delays discussed above was precisely the fact that different institutions performed the various functions under the Act. It is submitted that it may be time that we look closely again at this issue and consider other models.

It is submitted that the proposed division of labour between the two institutions is unsatisfactory. The Tribunal shall deal not only with arbitration but also with contentious issues like order to bargain, order to refrain from having recourse to unfair labour practices, and more importantly orders in the context of industrial disputes. These are totally distinct functions that sit uneasily together. In the first case the Tribunal looks at substantive issues of terms and conditions of employment whereas in the second case it deals with the disputes from a legal and tactical angle. The skills required to deal with these two categories of issues are different. Further substantive issues of terms and conditions of employment at the level of conciliation are dealt with by a different institution, namely the Commission.

In order to facilitate resolution of industrial disputes from the substantive angle, it is submitted that the same institution should undertake both the conciliation and the arbitration process with the contentious issues being dealt with by a different one, having the status of a court of law.

The model that immediately comes to mind for the first institution is the South African Commission for Conciliation, Mediation and Arbitration (CCMA). With conciliation and arbitration being both under the same roof, should conciliation not be successful, parties can literally move from the conciliation room to the arbitration room and the dispute resolved within one day. Unless parties object, the same person can undertake both the conciliation and the arbitration process, thus gaining even more time. The South African experience shows that, more often than not, parties do not raise any objection.

Seen from this perspective the double conciliation process, in the first instance before the Ministry of Labour and in the second instance before the Commission, proposed by the draft bill appears to be doubtful. If a conciliation process, done professionally, has not met with success, one can ask what is the point in having a second conciliation process unless the parties were not to have taken one or the other of the two conciliations seriously. If that is the case it would have been a total waste of time. Those proposing this bill will probably point out to the fact that this is already the case under the IRA. Save that the IRA does not explicitly provide for a conciliation process at the level of the Ministry. I have known Senior Counsels who have expressed doubts about this process. The 21 days under the IRA when the dispute is before the Ministry looks more like a cooling off period. Whether there should be a cooling off period or not is a different matter.

The South African model can be used from another perspective, namely staffing of the institution. The technical work of conciliation and arbitration is indeed performed by a trained professional staff with a career path within the institution. The current structure of the IRC and the PAT may have served its purpose well but it is high time that we recognise that conciliation and arbitration are professional activities requiring skill for which training is required. Further conciliation and arbitration are not activities that are in any way linked with government policies for them to require ministerial appointment. If we are to go down this route, the CCMA could certainly be approached to provide the necessary training to the staff of the proposed institution.

■ The National Remuneration Board

Under the draft bill, the National Remuneration Board stays in place with one major difference. Whereas under the IRA, the Minister may refer a sector to the NRB when he is of opinion that it is expedient to fix a minimum remuneration for that sector, under the draft bill the Minister will only be able to do so where he is satisfied that no arrangement exists in an industry for the effective regulation of wages and conditions of employment by collective agreements or otherwise.

This has prompted Mr. R. Seegobin to write that ?the Legislation wants to create the illusion that the minimal wages and conditions of Remuneration Orders (Awards), will continue just the same. But in reality, the Minister will stop referring to the NRB, except for sectors where collective agreements are impossible in practice. In most work sectors, Collective Agreements will supersede RO?s and Awards, and the latter will simply fade away, and there will not be real minimum wages and conditions for new workers? (l?express, 12 September 2007).

That may indeed probably be the case. My worry, however, is not so much that collective agreements will replace ROs. That in itself is not a bad thing if the collective agreements are entered into by strong representative trade unions. The problem under the draft bill is that collective agreements may be entered into by minority trade unions and also by a representative of workers (see our article in l?express, 18 September 2007). These situations would also debar the reference of the sector to the NRB.

The requirement that there be no effective collective bargaining in a sector before the it can be referred to a minimum wage board is, however, not new. This was already a criterion under the Minimum Wages Ord. 1950 which provided that an Advisory Board could only be appointed if, on report by the Labour Commissioner, the Governor was of opinion that no adequate machinery existed in that sector for the effective regulation of the remuneration of the workers. This provision more or less mirrored the ILO Minimum Wage-Fixing Machinery Convention, 1928 (Convention 26), which has been ratified by Mauritius and which provided for the establishment of such a machinery for sectors where ?no arrangements exists for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low?. The Regulation of Wages and Conditions of Employment Ord. 1961. adopted more or less the same approach as the 1950 Ord. before the IRA changed the criterion.

I must however admit that I am rather amazed by the support of trade unions for the NRB. Given the context in which it was introduced in 1973, with the emergence of the GWF, far from supporting trade unions the aim was rather to undermine trade union activities, literally cutting the grass under their feet. Further far from helping trade unions, the existence of an RO in a sector has often been used as an excuse by employers to refuse to accede to any request for salary increase. The reasoning put forward by employers is that they are already paying what the law requires them to pay and there is therefore no reason why they should pay any more. Some thirty odd years afterwards, trade unions seem to have accommodated themselves with ROs. A sign of change?

Dr Daniel FOK KAN Associate Professor, University of Mauritius