Comment: New regulation on strikes lacks legality and would wipe out resort workers’ constitutional rights

Citizens in Maldives have recently won important rights. The 2008 constitution guarantees fundamental rights, such as freedom of speech and association. The constitution also guarantees the right to strike, which is an extremely important right for workers. Without the right to strike workers are left powerless. In dictatorships like Saudi Arabia or Burma, the denial of the right to strike is a key weapon in suppressing democracy.

However, it seems that employers in the Maldives, unsatisfied with workers finally having human and labour rights, are doing their best to convince the government to effectively deny those rights.

This has come to light with regard to a draft Ministerial regulation on strikes dated August 11, 2010. The working draft looks to have been written as a birthday present for the resort owners, so one-sided it effectively nullifies workers’ constitutional right to strike.

Does the Minister have the authority to make a regulation on strikes?

Before examining the details of the draft regulation, there is an even more glaring error: it is doubtful that the Minister actually has the authority to make the regulation under the present law.

The first clause of the working draft notes that the regulation is made according to clause 89 of the Employment Act of 2008. That clause states: “Unless otherwise provided in this Act, regulations required to administer this Act shall be made by the Minister.”

What is crucial in this clause is the phrase “administer this Act”. That means regulations can only to be made for matters that the Act has defined, thus regulates and thus are in need of administering.

The Employment Act is concerned with the conditions and regulations of workplaces and the contract relationships for the provision of labour which exist between an individual (a worker) and an employer (which might be a person or a firm). The Act also covers the individual’s entitlements (such as maternity leave, working hours etc).

However, the Employment Act does not mention anything to do with the collective rights of workers in employment or their regulation (such as rules regarding trade union rights in the workplace or trade union recognition).

Chapter 4 of the Act (“employment agreement”) does not mention collective agreements which would be signed by a trade union and an employer. The entire chapter concerns the employment of individuals.

Article 30 of the Constitution of Maldives guarantees the right to form trade unions, yet nowhere in the entire Act are trade unions mentioned. The closest the Act comes is in Clause 21(b)(vi) where discrimination against a worker (as an individual) for membership or activity in a “workers’ association” is declared unlawful.

The Act does not mention fundamental matters related to workers’ collective rights and employment such as trade union recognition, collective bargaining, collective agreements or industrial disputes.

As such, a question must be raised: how can a strike, which like all forms of industrial action by workers is a collective act, be administered by Ministerial regulation when the Act does not address the collective rights and acts of workers or trade unions?

The proposed regulation actually has nothing to do with the Employment Act at present. It is almost certainly unconstitutional. The only way a regulation might be appropriate would be if there were already chapters and clauses in the Employment Act dealing with the collective rights of workers and trade unions.

Wiping out the right to strike

As for the details of the regulation itself these would effectively mean that workers would have no ability to conduct a legal strike. Workers would be completely at the whim of the employer.

Clause 6 of the draft regulation would make it almost impossible for workers to reach a stage where they could go on strike. The regulation provides only an example of a Grievance Procedure, thus making the procedure voluntary. How such a Grievance Procedure is to be put in place and how it would work is left completely undefined. Employers are under no legal obligation to include good faith mechanisms or rights protections.

Given current employment practices in Maldives, workers could simply be dragged endlessly through a procedure which is designed not to produce a result and thus not arrive at any point where a strike could be called.

The regulation contains a stunning contradiction. The regulation defines a strike as “stopping work” yet Clause 8(c) forbids strikers “from disturb[ing] the services they provide or should not create any kind of difficulties in the mean[s] of strike.” This clause actually means workers cannot stop work, since by definition, when workers strike, they are withholding their labour and thus disturbing the services of the workplace.

Take the resorts: would a striking front-desk worker still required to check-in guests? Would a striking chef still be required to cook meals? Would a striking house-cleaner still be required to make beds? With this the employer could easily claim any strike is a disruption and thus the strike would be illegal.

This same vagueness is repeated in Clause 11(iv) of the regulations which forbids workers from “interfere[ing] with customers”. This is extraordinarily vague and would allow any employer to simply claim: by going on strike workers are “interfering” with customers and the strike would be deemed illegal.

Clause 9 of the regulation includes a number of professions who are excluded from the right to strike. International labour standards as governed by the International Labour Organisation (ILO) are quite clear that with the exception of police and military, all other professions should retain the right to strike. It is doubtful that a regulation excluding so many professions would be acceptable under international human rights norms.

What to do?

It seems that this regulation, even if the Minister were to sign it, despite its clear breach of most international norms regarding workers fundamental rights, would have to ultimately be declared unconstitutional.

The Employment Act, does not give the Minister any authority to make regulations for matters not covered by the Act. Since strikes are a subset of workers’ collective rights and regulations to these rights are not mentioned in the Act, the Minister has no authority to make regulations to administer non-existent sections of the Act.

It is time for a serious rethink. Resort and hotel workers, in fact all workers, in the Maldives need a proper law which protects their collective rights to participate in trade unions, to collective bargaining and to industrial action. It solves nothing when short-cuts which must ultimately be found unconstitutional are tried.

Moreover, this regulation tramples on workers constitutional right to strike to such an extent it could become an international issue, placing Maldives in breach of its human rights commitments and the conventions of the International Labour Organisation.

The real reason that this regulation is being rushed through at this time is the resort owners in Maldives have consistently refused to recognise the collective rights of resort workers. Low wages, lack of transparency with distribution of the service charge, overwork and the high costs of living all remain unresolved problems for most workers.

Instead of engaging in genuine negotiations to resolve these matters with the Tourism Employees Assosiation of the Maldives (TEAM) – the resort workers union – the employers seek to rebuff TEAM at every opportunity.

TEAM is systematically denied recognition by the employers. The employers refuse to negotiate collectively and threaten workers. Workers are arrested and placed in jail at the behest of employers when they strike. Blacklists of known supporters of TEAM are maintained and distributed among employers. Despite these threats workers continue to exercise their constitutional right to strike because this is the only choice they have to resolve their interests. All other avenues are closed by the employers.

The best solution would be for the Government of Maldives to call for tripartite negotiations including TEAM and MATI, designed to reach an agreement for amendments to the Employment Act regarding trade union recognition, collective bargaining and industrial disputes. Or to produce an Industrial Relations Act regarding these matters. This would protect workers’ rights and produce clear and transparent mechanisms to allow for proper negotiations between TEAM and the resort owners and thus go a long way to resolving the root cause of strikes in the resort industry.

But a regulation with dubious constitutionality that effectively erases the right strike is in no one’s interests and will only harm Maldives’ international reputation in regard to democracy and human rights.

Dr Jasper Goss is Information and Research Officer with the Asia/Pacific regional organisation of the International Union of Foodworkers (IUF), the global trade union federation which represents resort, hotel, food and agriculture workers.

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11 thoughts on “Comment: New regulation on strikes lacks legality and would wipe out resort workers’ constitutional rights”

  1. It is an interesting read and wish to point out to Dr Jasper Goss that if he speaks with employers I am sure that he will find that when dialouge has been entered with TEAM and an Employer, TEAM become very aggressive and act on their own accord with out any guidance or regulatory facts. Negotiations have been tried before but never happens as gets too political and one-sided. Also how can you have the president of TEAM as a member of parliment, that does not seem to show fairness or transparency. A lot of ground work has to be covered and put into place and almost go back to basics to get TEAM set up in a proper and regulated manner. Yes a strike can get a point across however threating staff who do not join the strike is also not right! Also strikes only do damage to the country and its reputation.
    Lets hope this can be resolved by all parties, otherwise it will drag on for many years to come...

  2. Above Commented person might need study title bit more on freedom of association and how trade union works and how team is working and also constitution of team before commenting.

  3. I am sure this is the kind of comment that the government is looking for. The new regulation is not a done deal and even TEAM can comment on it.

  4. @Anon on Sat, 2nd Oct 2010 1:28 PM

    You take issue with the head of TEAM being an MP. But you seem to be OK with the large number of resort owners and share holders who are also MPs. If a head of a trade union should not be an MP then no business owner should also be an MP.

  5. Dear all
    lets focus on the matter, government is on working draft of regulating strike on property something like that but this matter is not only for tourism sector but also for the civil service too, generally whole work force, and the issue is that there is no legal ground that labor minister can do such thing,(according to clause 89 of the Employment Act of 2008. That clause states: “Unless otherwise provided in this Act, regulations required to administer this Act shall be made by the Minister.”
    we have to rise our voice on this matter!!!think more than once

  6. The writer makes some very valid points. The Employment Act considers individual employment and is not made relevantly to a person employed on a resort where his whole working and social environment is the island hotel he is confined to.

    Bearing in mind that before a strike all other methods to solve conflicts must be exhausted, a regulation cannot take away a right given by the Constitution.

    I also read the other day that resort workers must have the consent of the management to strike. Resort Managements are smaller regimes of their own similar to the last years Maumoon's regime which the Maldivian people so desperately wanted to change.

    The country needs change at every level. The Ministry must uphold the promises made to the people and not favor the few rich. The abuse has gone on for too long.

    To the resort workers I would say...persist like Anni (and the Maldivians fought over years )to bring change. Negotiate until you can no more but if you do have to strike, keep pushing till you get a fair platform.

    To employers I would say..listen to them. You do not need to fear you are losing because fair conditions will create happy workers which will in turn reward you more....

  7. Considerations of realpolitik must be made as well. The state has never at any point enforced local staff quotas agreed upon by resort owners and operators at the time of awarding bids. No real obligation exists to hire and retain Maldivian citizens in resorts. There is also an attitude problem prevalent amongst Maldivian staff (at least in Male' where I can draw conclusions from) where populist "union leaders" often organize rallies to demand cash incentives that outweigh their productivity. The civil servant's union is one shining example - not one civil servant has gone on record to mention the lack of clear hiring/firing rules, promotional policy and a lack of modernity in organizational structure in the civil service.

    TEAM may have a point here but without the political will to address this issue by engaging all stakeholders as mentioned in this article and without the genuine commitment on the side of the state to facilitate employment in our tourism industry (this I believe is the most important factor) and with the lack of sincerity and increasing politicization of unions formed on our shores, the issue may just get stalled in dead-end discussions and endless red tape.

  8. Dear Mr Goss,
    These resorts are private properties. Picketing, Strikes & Protesting are not done on others private properties anywhere. Those who wants can move out and strike.
    And Maldivian Employment Act is one of the most one sided affair you could see anywhere. It is illegal even to give a bad reference to an employee - irrespective how he performs. Look at both sides of the coin before writing these type of issues - unless your intention is just to add fuel to an already burning fire.

  9. @truth,

    There are no private islands in Maldives. All are public property. Some islands are leased to private parties to run resorts.

    As for striking on private property, read through history of labour unions in the US and you'll find you are completely wrong.

  10. Dear All resort workers beware and be aware of these amendments. We have to stand against it as one TEAM.


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