The provisions relating to the registration of trade unions give rise to two important issues relating firstly the objection procedure and secondly to the requirement of a minimum number of 30 members for the registration of a trade union..

■ <B>The objection procedure</B>

The draft Bill does away with the objection procedure provided under the Industrial Relations Act (IRA) that allows any registered trade union to object to the application for registration of another trade union. This was long overdue. While the objection procedure made sense, from a technical point of view, between 1973 and 1976 when the law as it then stood provided that the Registrar could refuse to register a trade union where there already existed a registered union which was sufficiently representative of the interest which was intended to be safeguarded by the trade union seeking registration, the objection procedure lost its relevance when this procedure was removed in 1976. The legislature unfortunately then failed to remove the objection procedure. It can probably be safely stated that there have not been more than 10 cases of objection over the past ten years, all of which have been rejected.

The draft bill has unfortunately deemed it fit to provide an appeal procedure on the part of any trade union aggrieved by the decision of the Registrar to register a trade union. Apart from the highly improbable case of the Registrar registering a trade union with a name similar to that of an existing one or with a name so closely similar to it, it is hard to imagine in what other circumstances a trade union may be aggrieved by the registration of another trade union.

The fact that the new trade union is likely to tread on the ground of the existing trade union is clearly no ground for refusing to register the new trade union. If the government wishes to provide for an appeal procedure, it is submitted that it should be limited to specific circumstances, limitatively listed. In our view there can only be one ground; the one mentioned above.

■ <B> Minimum number of 30 members</B>

The draft bill provides that a trade union must have a minimum number of 30 members before it can be registered. Currently that figure stands at 7. Interestingly this requirement of 7 members does not appear in the IRA itself but in the Trade Union Regulations taken under the Act. It would appear that there have been mixed reactions from the trade union movement to the figure of 30. While some trade unionists have expressed their approval, others have condemned it, with still a third group expressing approval with certain reservations. It is understood that this figure of 30 was reached after consultations with experts from the ILO.

The ILO Committee on Freedom of Association has indeed disapproved of legislations requiring that a trade union must have at least 50 founder members and ruled on the other hand that a minimum number of 20 members does not seem to be excessive and does not in itself therefore constitute an obstacle to the formation of a trade union.

In a case relating to Ecuador, the Committee has ruled that the minimum number of 30 workers would be acceptable but in relation to sectoral trade unions. However, this minimum number ?should be reduced in the case of works councils (works councils according to national Ecuadorian terminology are trade unions) so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions? (Ecuador (Case No. 1746) The Ecuadorian Federation of Agricultural, Agro-Industrial and Food Workers (FETAL)). From ILO case law itself it would therefore appear that the view of the ILO expert consulted by the Government should not be taken at face value but needs to be considered in the light of the particular situation of Mauritius in order to determine whether the requirement of 30 members would be in conformity with the ILO conventions or not. I leave it to the trade union movement to reach a conclusion on whether in the light of trade union structure in Mauritius, the figure of 30 constitute or not an obstacle to the formation of trade unions in this country.

■ <B> Recognition of trade unions</B>

Disputes relating to recognition of trade unions are to be dealt with by the Employment Relations Tribunal, the successor to the Permanent Arbitration Tribunal. The draft bill does away with the two steps procedure under the IRA whereby the Industrial Relations Commission (IRC) makes recommendations after investigation and the PAT enforces these recommendations. This is certainly to be welcomed, as it would avoid the absurd situation that some unions have experienced of obtaining an enforcement order from the PAT that has already lapsed at the point where it was issued.

The new procedure otherwise diverges from the existing one in two main respects; firstly in providing specific percentages before trade unions can obtain recognition from the Tribunal and secondly in giving the Tribunal power to undertake secret ballots. I would, however, suggest that these provisions, as drafted, may be a source of instability with regard to employer/ union relationship and as such do not necessarily constitute an improvement in relation to the current ones which admittedly are rather sketchy.

■ <B>The percentage criterion</B>

The draft bill provides for three situations, firstly that where a trade union has the support of not less than 30 per cent of the workers in which case it is entitled to recognition, secondly that where a trade union has the support of more than 50 per cent of the workers in which case it is entitled to recognition as sole bargaining agent, and thirdly that where two or more trade unions have each the support of 30 per cent or more but less than 50 per cent of the workers, in which case they shall be entitled to be recognized as a joint negotiating panel.

In a case relating to Ecuador, the Committee has ruled that the minimum number of 30 workers would be acceptable but in relation to sectoral trade unions.

Significantly the draft does not cater for the situation where two or more trade unions all obtain the support of more than 50 per cent of the workers. Considering that an employee may form part of more than one union that situation may very well be a reality unless of course when conducting the secret ballot the Tribunal invalidate all ballots cast in favour of more than one trade union. We would, however, suggest that such a procedure would be contrary to the right of association of employees as expressed in Clause 30 of the draft bill.

Currently the IRA gives the IRC flexibility in determining the level of support a trade union must have in order to be deserving of recognition. For the past twenty years or so, the Commission has recommended sole recognition where a trade union has the support of around 30 per cent of the workers. The above provisions seem to be the concession made by the draft bill to the trade unions for requiring 50 per cent support before a trade union will be entitled for sole recognition.

These provisions, however, have the major inconvenience, of requiring two or more trade unions, which each have between 30 to 50 per cent support, to cohabitate even though they are not prepared to collaborate. And yet the draft bill in its Code of Practice itself recognises that ?in general, it is in the interest of workers and of the industry that any given category of workers in an undertaking shall be represented by a single trade union? (Art. 100, Art.65 in the current Code of Practice). It is to be wondered whether the provisions of the draft bill are not in contradiction with its own Code of Practice.

Conscious of the fact that the trade unions may eventually not agree among themselves, the draft bill tries to resolve the problem by allowing two trade unions representing more than 50 per cent of the workers to bind any dissenting trade union when it comes to the signature of collective agreements. The principle of majority rule may perhaps justify this provision. But the draft bill goes further and allows a trade union representing less than 50 percent of the workers to sign a collective agreement and makes it binding upon the other trade union through an application to the Tribunal. Though the intervention of the Tribunal would probably serve to protect the interest of the workers, one can always see the danger of an unnatural alliance between the employer and a trade union lurking behind such a scheme.

Where the trade unions reach the level of support as stated above, it appears to be mandatory for the Tribunal to make the order as stated. This conclusion flows from the use of the word ?shall? It appears that there are no other considerations apart from mechanically determining the level of representativeness of the trade unions in resolving recognition disputes! And yet where the recognition of a new trade union may give rise to the revocation of the recognition of another trade union, the draft bill itself expressly requires the Tribunal to enquire into the independence of the trade unions in respect of the employer. It is to be wondered why this issue is not relevant in other situations. Further the writer of the draft bill seems to have forgotten that at the end of the bill there are principles that the Tribunal shall have regard to in the exercise of its functions. With the use of the word ?shall?, one fails to see how the Tribunal can take into account these principles.

■ <B>The secret ballot</B>

Coming to the issue of the secret ballot, the draft bill requires the Tribunal to organise and supervise one where it appears, presumably on the basis of evidence then before it, that the trade unions do not enjoy the level of representativeness mentioned above. It appears that the Tribunal does not have any choice in the matter and that it is under duty to organise a secret ballot in such cases.

It is suggested that this may result in situations where trade unions would put in applications with the knowledge that the Tribunal would be duty bound to organise a ballot, even though they do not enjoy much support among employees. And this exercise can be repeated every 12 months. Knowing how fragmented the trade union movement is in this country, with the various trade unions treading on each other toes, the above scenario may well become reality. Such a situation would hardly be conducive to harmonious industrial relations.

Significantly the draft does not cater for the situation where two or more trade unions all obtain the support of more than 50 per cent of the workers.

By expressly providing for a secret ballot in such cases, the draft bill seems, a contrario, to suggest that the Tribunal may not order a secret ballot in other circumstances. And yet as any employment relations practitioner would know, recognition proceedings are far more complex with a multiple number of other situations where a secret ballot would be a necessity. It is suggested that it would be best to leave it to the Tribunal to determine when a secret ballot would be required.

Elections necessarily imply canvassing of voters. It is not any different for ballots relating to recognition of trade unions. In this case it is not only a question of choice between the various trade unions but also one between having a trade union or no trade union at all. A voter can only express an informed choice where he is provided with the relevant information. Many legislatures thus grant access to the enterprise to the trade unions, albeit a limited one, for the purpose of informing the workers of the benefits of having union representation within the workplace. This is the case in English law for example. If mandatory secret ballot we are to have, it is suggested that the right to inform is a necessary attribute to it. The draft bill does provide for a right of access to the workplace, but it is a right that a trade union may only enjoy after having obtained recognition.

Irrespective of the recognition of a trade union, it is significant to note that the bargaining process may also be undertaken by a representative of the workers where no trade union has been recognised. Such a representative may thus enter into collective agreements with the employer that in terms of the draft bill will be binding upon all the workers. Given the far-reaching consequences of concluding a collective agreement, it is rather worrying that the draft bill rests content with saying that the representative will be duly chosen and authorised by the workers. Is it expected that there would be an election? If so, who will organize it? What level of support must a worker obtain for him to be considered as having been duly chosen? Unless these issues are addressed, it is suggested that we would here be courting trouble given the modalities being at present used by employers to chose the workers? representative on works councils. .

These are only a few of the issues that the provisions for the registration and the recognition of trade unions give rise to. But there are enough dark spots here for me to suggest that we need to go back to the drawing board on these points. It is quite possible that my reading of the draft bill is wrong. But then the public unfortunately has not been favoured with a White Paper that would have explained the objectives of the Government and the rationale of the various provisions.

<B>By Dr. Daniel FOK KAN (Associate Professor, University of Mauritius) </B>