Section 38: Order for recognition of trade union of workers

38. Order for recognition of trade union of workers (1) 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. (2) On an application made under subsection (1), the Tribunal shall— (a) subject 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; (b) 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, where— (i) a trade union or group of trade unions already has recognition in respect of that bargaining unit; and (ii) 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; (c) 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, where— (i) no other trade union or group of trade unions has been granted recognition in respect of the bargaining unit; and (ii) 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; (d) set aside the application where it is satisfied that a trade union or group of trade unions has not produced evidence that it is eligible for recognition in accordance with section 37. (3) The Tribunal may organise and supervise a secret ballot in the bargaining unit before— (a) making an order under subsection (2) (a); and (b) setting aside an application under subsection (2) (d). E9A – 25 [Issue 5] Employment Relations Act (4) Where an application is made to the Tribunal under section 37 (4) (a) (iii) or (b), the Tribunal shall organise and supervise a secret ballot in the bargaining unit in order to determine which trade union the workers in the bargaining unit wish to be their bargaining agent. (5) In a situation not covered in subsections (1) to (4), where an application is made to the Tribunal in a matter relating to recognition of a trade union or group of trade unions, the Tribunal may 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. (6) Where a secret ballot takes place under this section, a worker shall not vote for more than one trade union or group of trade unions. (7) (a) The Tribunal shall determine an application under section 37 and under this section within 30 days of the receipt of the application. (b) The Tribunal may, in exceptional circumstances, extend the delay specified in paragraph (a) for another period of 30 days. (8) Where the Tribunal makes an order or determination granting recognition, the order or determination 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 bargaini ion under section 37 and under this section within 30 days of the receipt of the application. (b) The Tribunal may, in exceptional circumstances, extend the delay specified in paragraph (a) for another period of 30 days. (8) Where the Tribunal makes an order or determination granting recognition, the order or determination 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 agent, or whether there shall be a joint negotiating panel; and (d) require the trade union or the joint negotiating panel and the employer concerned to meet at specified intervals or at such time and on such occasions as the circumstances may reasonably require, for the purposes of collective bargaining. (9) 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, it shall replace any other trade union or group of trade unions as the bargaining agent of the workers. (10) Where recognition has been ordered or determined under this section, no claim for recognition or revocation or variation of recognition in the same bargaining unit shall be entertained before the expiry of a period of 12 months commencing on the date of the order or determination, as the case may be. (11) The Tribunal may, where the recognition of a new trade union gives rise to the revocation of the recognition of another trade union, enquire into the independence of the trade unions in relation to the employer. (12) Where an employer fails to comply with an order or determination under this section, the aggrieved party may apply to the Tribunal for compensation and the Tribunal shall make an order for the payment of a compensation [Issue 5] E9A – 26 Revised Laws of Mauritius which shall not be less than 500 rupees per day so long as the order or determination is not complied with. [S. 38 repealed and replaced by s. 14 of Act 5 of 2013 w.e.f. 11 June 2013.]