Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 376, Octubre 2015

Caso núm. 2512 (India) - Fecha de presentación de la queja:: 21-AGO-06 - Casos en seguimiento cerrados por falta de información de parte de la organización querellante o del Gobierno al término de dieciocho meses contados desde la fecha del último examen de los casos

Effect given to the recommendations of the Committee and the Governing Body

1. 24. The Committee last examined this case, which concerns alleged acts of anti-union discrimination and interference in trade union affairs through the creation of a puppet union, dismissals, suspensions and transfers of trade union members, arbitrary reduction of wages, physical violence and lodging of false criminal charges against trade union members, at its March 2014 meeting [see 371st Report, paras 72–78]. On that occasion the Committee deeply regretted that two anti-union dismissal cases, the cases of M. Subramani and P. Ravinder, were still pending before the Madras High Court almost ten years after termination of the employment of the claimants. The Committee firmly expected that those cases be concluded without any further delay and urged the Government to provide copies of the rulings as soon as they were handed down.
2. 25. The Committee also requested the Government to provide updated information on the outcome of other remaining anti-union dismissal cases, and to provide detailed observations on the status of the cases of allegedly false criminal charges against members and officers of the Madras Rubber Factory United Workers’ Union (MRFUWU) and their alleged transfers because of trade union membership or activities. With regard to the enactment of legislation providing for recognition of trade unions, the Committee requested the Government to provide detailed information on the deliberations of the State Labour Advisory Board on 30 January 2013 and on the examination by the state Government of Tamil Nadu of the related issues. The Committee firmly expected that the Government, in full and frank consultations with the social partners, actively consider establishing objective rules for the designation of the most representative union for collective bargaining purposes. Finally, the Committee reiterated its request that the Government give due consideration to the adoption of legislative provisions that further the goal of preventing anti-union discrimination including by providing sufficiently dissuasive sanctions; and once again recalled that the relevant provisions of the Industrial Dispute Act must be amended in order to ensure that the suspended workers and trade unions using the Grievance Redress Machinery may approach the court directly, without referral by the state Government.
3. 26. In a communication dated 19 April 2014, the MRFUWU provides additional follow-up information in support of its original complaint. Concerning the cases of dismissal of M. Subramani and P. Ravinder, the complainant submits that the appeal lodged by the management against first instance awards directing their reinstatement with continuity of service and payment of 50 per cent back wages is still pending before the Madras High Court. Likewise, the cases relating to the dismissal of 22 of MRFUWU members remain pending before the Madras High Court, following appeals lodged by the management against the awards of Labour Court, Vellore, directing their reinstatement with continuity of service and payment of 25 per cent back wages. The complainant finally states that, on 18 September 2013, the Industrial Tribunal, Chennai, dismissed the management’s Approval Petitions Nos 57, 58, 69, 70, 118 and 124 of 1995, seeking the approval of the dismissal of six worker members of the MRFUWU, one of whom, V. Divijendran, is the Vice-President of the union. The management has appealed against this award, and the case is now pending before the Madras High Court. The complainant alleges that these workers were unjustly dismissed and criminal charges were also pressed against them on false grounds, but the criminal cases had earlier ended in acquittal.
4. 27. The complainant refers to a number of allegedly groundless criminal cases that remain pending against its members. These include cases pressed against 42 members who participated in a peaceful procession in Chennai on 30 July 2009, seeking to hand over petitions to government and management, requesting the implementation of the recommendations of the Committee on Freedom of Association. The police intervened, allegedly at the instance of the management, lathi-charged the participants, and caused serious injuries to six workers and one child. In this context, a criminal case was registered against 42 members of the MRFUWU that remains pending before the Court of Chief Metropolitan Magistrate, Egmore, Chennai, as CC No. 1223 of 2010. The complainant also mentions three criminal cases pending before the Court of Judicial Magistrate II Arakkonam against its office bearers, allegedly on the basis of false complaints. One criminal case that was before the Court of the Assistant Sessions Judge, Ranipet, Vellore, ended in acquittal, against which judgment the management has filed an appeal, which is now pending before the Madras High Court.
5. 28. With regard to the recognition of the MRFUWU for collective bargaining purposes, the complainant states that the management insists on its refusal to recognize the union. The management and Arakkonam MRF Workers’ Welfare Union (AMRFWWU) filed a Special Leave Petition (SLP) against the 2009 judgment of the Madras High Court that directed the application of the procedure prescribed under the Code of Discipline for determination of the most representative union. The SLP remains pending before the Supreme Court of India since 2010. The complainant states that, at the early stage of the proceedings, the Government of Tamil Nadu has stated before the Madras High Court that it has no legal obligation to ensure that recognition is accorded to the MRFUWU.
6. 29. The complainant holds that, on 20 June 2013, the management entered into a settlement on terms and conditions of employment with the AMRFWWU, which the complainant claims is a puppet union. The binding force of this settlement was limited to the signatory union. The management also immediately granted recognition to the Anna Thozhilalargal Sangam Peravai (ATP) union, which was formed in 2011 and has a membership of barely 70 workers. Subsequently on 3 July 2013, before the Conciliation Officer, the 20 June 2013 settlement was converted into a settlement under section 12(3) of the Industrial Disputes Act, which is binding on all workers in the factory, including on the MRFUWU members, who were not represented in the settlement. The complainant recalls in this regard, that prior to the settlement of 20 June 2013, 800 of the 1,232 workers belonging to the MRFUWU had sent letters by registered post in May–June 2013 affirming that they are only members of the complainant union and therefore no settlement should be entered into with any other union. The MRFUWU states that those letters were ignored.
7. 30. The MRFUWU reports that on 30 October 2013, in the proceedings related to ID No. 14 of 2008, the Industrial Tribunal, Chennai, rejected a Miscellaneous Application (MA No. 29 of 2010) of the management of the company seeking an award in terms of the settlements it had entered into with its puppet unions in 2004 and 2009. The Tribunal grounded this rejection in the fact that the management had failed to establish that a vast majority of the workers were parties to the said settlements.
8. 31. In its communication dated 4 December 2014, the Government provides details about 31 dismissal cases including the cases of M. Subramani and P. Ravinder. According to this information, the following cases have been settled by the Labour Court, Vellore: P. Baskar, B. Meshak, A. Ravi, S. Prakasam, V. Baskaran, A. Paranthaman, E. Narashimalu, R. Dhinakaran, D. Babu, E. Raja, S. Hari Govindan, Sekarkumar, T.S. Arumugam, S. Babu, Arul Gandhi, Muthan, Thulasiraman, K. Ravikumar and S. Vinayagam. In the following cases, the awards of the Labour Court are still pending appeal before the High Court, Chennai: N. Ramathilagam, M. Subramani, P.N. Ravidaran and M. Sudarsanam. Two cases were dismissed for default by the petitioner: S. Srinivasan and K. Periyasamy. The case of E. Vajravelu was settled outside the Court and R.S. Sathyamurthy and R. Senthilnathan were reinstated. Three dismissed employees did not lodge a complaint: R. Chandran, Sridhar and M. Krishnamurthy. In this regard, the Government of Tamil Nadu acknowledges the information provided by the complainant, according to which as a result of the appeal petition presented by the employer, dismissal cases of P. Ravinder and M. Subramanian and 22 other worker members of the MRFUWU are now pending before the Madras High Court. The state Government also refers to “the earlier case involving dismissal of probationers” and states that the dispute is before the Labour Court and it is “expected to be disposed of shortly”.
9. 32. The Government reiterates that nine other dismissal cases remain pending before the Industrial Tribunal, Chennai [same as mentioned in 371st Report, para. 73]. The Government indicates that the management has framed charges for certain misconduct committed by individuals as per the Standing Orders and has held independent inquiry and, since the charges have been proved beyond reasonable doubt, termination orders have been issued. The Government affirms that the judiciary acts in independence and the Government cannot have a say in disposing of cases before the courts.
10. 33. With regard to recognition of trade unions, the Government refers to input it has received from the Government of Tamil Nadu which reiterates that the state follows the Code of Discipline procedure adopted as per the recommendations of the Indian Labour Conference and the union had to seek recognition through the State Evaluation Committee only, which it chose not to do. In this regard, the state Government reiterates that a State Evaluation and Implementation Committee was constituted that conducted a fact-finding mission to the unit and on 28 May 2008 submitted a report to the Government in which it observed that most workers at the unit had dual membership in both the MRFUWU and the AMRFWWU and that they were free to choose their union. The state Government considers that thereby it has complied with the ILO recommendations. With regard to legislative measures and the recommendation to consider laying down objective rules for the designation of the most representative union, the Government indicates that an amendment to the Trade Union Act, 1926, in conferring recognition to trade unions is under examination.
11. 34. With regard to the settlements between the management and the AMRFWWU, the state Government indicates that these are long-term wage settlements with recognized unions having the support of the majority of workers. The 20 June 2014 settlement was a bipartite settlement with the AMRFWWU which enjoys the support of the majority of workers within the unit. It came about as a result of the expiration of the erstwhile settlement dated 9 May 2009. The state Government indicates that, although most workers subscribed to the 20 June settlement, some disgruntled workers belonging to a new union, namely MRF Anna Thozhilalargal Sangam, objected to it and raised a dispute before the Joint Commissioner of Labour. Therefore the settlement was taken to the conciliation table and, after a due process of conciliation, it was converted to the settlement dated 3 July 2013, which was a tripartite settlement with the AMRFWWU and the MRF Anna Thozhilalargal Sangam, signed before the Joint Commissioner of Labour under section 12(3) of Industrial Disputes Act. Settlements signed under section 12(3) extend to all workers on the unit by operation of law. It is stated that, prior to the signing of this last settlement, the Conciliation Officer gave ample opportunities to the complainant union to participate in wage negotiations. The MRFUWU initially took part in the conciliation proceedings, but later withdrew from the process and so spurned the opportunity to be a signatory to the settlement. The Government concludes from the above that claims of non-recognition of the complainant union are incorrect. In the same line of thought, the state Government indicates that since in the State of Tamil Nadu there is no law for trade union recognition in such situations, the management of the company cannot accord recognition to any trade union. Hence it is incorrect to state that they have accorded such recognition to the MRF Anna Thozhilalargal Sangam. The Government states that the company had engaged with all the registered unions including the complainant union either at bilateral level or before the conciliation machinery, irrespective of their affiliation and representative capacity, with a view to a long-term wage settlement.
12. 35. With regard to Miscellaneous Application (MA) No. 29 of 2010 in the ID No. 14 of 2008 proceedings before the Industrial Tribunal, Chennai, the state Government contends that the MA resulted from a mutual agreement between the union and the management as to request a decision on whether an award can be passed in terms of 2004 and 2009 settlements as a preliminary issue. The Government states that, despite its refusal to pass an award in terms of settlement, the Tribunal admitted that the letters of workers accepting both settlements are genuine.
13. 36. With regard to Approval Petitions Nos 57, 58, 69, 70, 118 and 124 of 1995, the Government of Tamil Nadu states that the case pertains to dismissal of six workers, who had committed acts of misconduct such as violence and assaulting co-workers. It disputes the complainant’s allegation regarding Mr Divijendran stating that the MRFUWU did not exist at the time of his dismissal. It further states that one of the six workers involved has since been employed in the Tamil Nadu police services. The Government acknowledges that the Tribunal has dismissed Approval Petitions after 18 years, against which decision the management has appealed, although, since the award had binding force, the management paid 700,000 rupees to each of the six dismissed workers.
14. 37. With regard to the events of 30 July 2009, the state Government transmits the allegations of the company, according to which the procession was conducted by a mob that was involved in criminal activity and unleashed threats at the company’s office. It states that the so-called mob threatened the lives of staff members working at the office and indulged in acts of vandalism, caused damage to property, shouted slogans, hurled stones and chappals and created a tense situation and panic besides causing public nuisance on the road. Participants in the procession stopped the company buses and did not permit the willing workers to enter the factory for work. The state Government acknowledges that, in the wake of these events, criminal cases were registered against members of the complainant union, which are pending before the local magistrate’s court. The Government states that the police took appropriate steps and the Department of Labour cannot interfere with the police action in a law and order situation.
15. 38. The Government states that all the allegations and averments of the complainant union are far from truth, made with mala fide intention of tarnishing the image of the company, as well as the Governments of India and Tamil Nadu in the international arena, while there are protective laws and legal remedies available in the domestic legal order. The Government of Tamil Nadu has taken all earnest steps to solve the issues and the plant is running smoothly without any disruption of productivity. The Government concludes by stating that each and every observation of the Committee has been carefully examined by the Government and all possible actions within the legal framework have been taken; and requests the Committee to close Case No. 2512.
16. 39. The Committee takes note of the information provided by the Government and the complainant. With regard to the continued non-recognition of the complainant union by the employer, the Committee notes the allegation of the complainant union that the employer has entered into new settlements with two other trade unions present in the factory, and that the binding force of the second settlement is extended to the members of the complainant union according to the law, although they were not represented in the settlement. The Committee notes the information provided by the Government in response to this allegation, which acknowledges that the last settlement was extended to the members of the complainant union, despite the fact that their representatives were not involved in concluding the agreement, which the Government states is a long-term wage settlement. The Committee also notes that the Government states that the Conciliation Officer gave ample opportunities to the complainant union to participate in the conciliation process, but the latter finally refused to continue the process to the end and to sign the final agreement. The Committee recalls that when the extension of the agreement applies to non-member workers of enterprises covered by the collective agreement, this situation in principle does not contradict the principles of freedom of association, in so far as under the law it is the most representative organization that negotiates on behalf of all workers [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1052]. Therefore, in order to appreciate the conformity of the extension of the settlement with principles of freedom of association, the most representative union would need to be determined at the outset. The Committee is bound to recall that, as of the beginning of its examination of this case, it has observed that the lack of a clear, objective and precise procedure for determining the most representative union has led to the lack of resolution of this matter and has fomented continuing conflict within the company, which is not conducive to harmonious industrial relations. In the light of the information provided by the Government and the complainant union, the Committee is bound to note that this matter remains unresolved. The Committee deeply regrets that the Government does not provide any detailed information in its last communication as to the measures taken for establishing objective rules for the designation of the most representative union and once again requests the Government to actively consider, in full and frank consultations with the social partners, establishing objective rules for the designation of the most representative union for collective bargaining purposes and to keep it informed in this regard.
17. 40. With regard to the anti-union dismissals denounced by the complainant, the Committee notes with great concern that nearly all legal proceedings concerning dismissals remain pending many years after the termination of the plaintiffs’ employment. Twenty-four cases remain pending before the Madras High Court, two of which concern workers that were dismissed in 2004. The Committee furthermore notes that nine cases filed by workers dismissed in 2011 and 2012 remain pending before the Industrial Tribunal, Chennai. The Committee once again recalls that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious. Cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of trade union rights of the persons concerned [see Digest, op. cit., paras 820 and 826]. In view of the extremely long delay in concluding the proceedings, the Committee firmly urges the Government to ensure that the judgments of the court of first instance directing reinstatement of workers with continuity of service and back wages are implemented pending the appeal proceedings before the Madras High Court, and to provide it with detailed information on the progress made in this regard. With regard to the cases of allegedly false criminal charges being brought against members and officials of the MRFUWU, the Committee deeply regrets that, despite its request, the Government has not provided any detailed observations on the outcome of the investigations, neither has it produced copies of the rulings. The Committee urges once again the Government to provide detailed and updated information on all such cases, including the case registered against members of the complainant union at the wake of the events of 30 July 2009 in Chennai, CC No. 1223 of 2010, which is pending before the Court of Chief Metropolitan Magistrate, Egmore, Chennai. Furthermore, the Committee once again requests the Government to give due consideration to the adoption of legislative provisions that further the goal of preventing anti-union discrimination, including by providing for sufficiently dissuasive sanctions against such acts.
18. 41. The Committee notes the allegation of the complainant union that excessive police force has been used in response to a peaceful procession organized in Chennai on 30 July 2009, to request the implementation of the recommendations of the Committee; and that this resulted in serious injuries to several workers and one child. The Committee notes that, in response to this allegation, the Government has not provided any observations, but only transmitted the allegations of the employer as to the violent nature of the said procession. The Committee recalls that the right to organize public meetings and processions constitutes an important aspect of trade union rights and observes that a procession to request the implementation of the recommendations of the Committee falls within the exercise of trade union rights. The Committee is bound to recall that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., para. 140]. The Committee urges the Government to conduct an independent judicial inquiry into the abovementioned events with a view to clarifying the facts and determining the justification for police action and responsibilities and to keep it informed of the outcome.