Effect given to the recommendations of the committee and the Governing Body - Report No 338, November 2005

Case No 2228 (India) - Complaint date: 30-OCT-02 - Closed

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

1. 188. The Committee examined this case at its November 2004 meeting [see 335th Report, paras. 881-908] and on that occasion it formulated the following recommendations:
   • (a) Referring to its recommendation concerning the dismissal of 14 workers at Worldwide Diamonds Manufacturers Ltd, the Committee requests to be kept informed of the progress of the cases brought by those workers alleging anti-union discrimination resulting in dismissals.
   • (b) The Committee requests the Government to ensure that the principle that complaints of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned, is observed in the cases of the workers suspended or fined and, if it is confirmed that the imposition of the suspensions and fines were linked with the legitimate trade union activities of the workers, to take measures to ensure that the workers concerned are appropriately compensated.
   • (c) The Committee requests the Government to take all necessary steps urgently to ensure that an independent and thorough investigation, with the cooperation of the complainant organization, is carried out in relation to the allegations concerning the brutal suppression of the strike, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant’s local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers’ homes in order to threaten them so that they return to work. The Committee requests to be kept informed of the investigation’s conclusions and, if the allegations are established to be well founded, the measures proposed to be taken in response so as to determine responsibility, punish those responsible and prevent the repetition of such acts.
   • (d) The Committee requests the Government to keep it informed of the progress of the criminal cases brought by the police against the workers arrested during the strike in January 2002.
   • (e) The Committee requests the Government to ensure that the CITU Visakhapatnam Export Processing Workers’ Union be allowed to take part in negotiations, if it represents a sufficient number of the workers at Worldwide Diamonds Manufacturers Ltd and requests the Government to ensure that all workers in export processing zones have the right to form and join trade unions of their own choosing for the purposes of collective bargaining. The Committee requests to be kept informed in this regard.
   • (f) The Committee once again requests the Government to ensure that the roles of GRO and DDC are carried out by different persons or bodies.
   • (g) The Committee requests the Government to confirm that workers and trade unions are able to approach the Court directly without being referred by the state government, and to indicate the ways in which the legislation, and in particular the Industrial Disputes Act 1947, has been amended accordingly.
2. 189. In its communication of 4 December 2004, enclosing comments and observations from the Visakhapatnam Export Processing Workers’ Union and a letter addressed to the Minister of Labour, the complainant organization, the Centre of Indian Trade Unions (CITU), stated that no progress was made in implementation of the Committee’s recommendations. In addition, the complainant organization contested the Government’s previous statement that Mr. Sudhakar was dismissed on the grounds of his poor performance during his traineeship. According to the union, he was dismissed for his trade union activities.
3. 190. As regards criminal cases, the complainant stated that one case (CC No. 257/2002 on charges under sections 506, 352 and 188 of the Indian Penal Code (IPC)) was withdrawn on 24 April 2004, two others (on charges under sections 144 and 151 of the IPC) were still pending. The complainant further submitted that, contrary to the previous statement made by the Government, at no point in time did the workers indulge in violent acts. The complainant explained that, when the government representative from New Delhi visited the VEPZ, workers, through their union representatives, tried to submit a memorandum to him but were refused and told to submit the memorandum outside the VEPZ premises, at Kurmannapalem Junction, 5 kms away from the VEPZ. Once there, the workers were told to go to Srinagar Junction, 1 km away. At Srinagar Junction, police proceeded with arrests under section 144 of the IPC, which made any gathering of workers within the area of 20 km around VEPZ illegal.
4. 191. The complainant also alleged that the suppression of freedom of association was still continuing in all units of the VEPZ. The complainant referred to numerous cases of termination and suspension. More specifically, in the Synergies Dooray Automotive Ltd., an industrial unit of the VEPZ, six workers were dismissed and four were suspended; the right to five sick days per year was also withdrawn. Following the closing of the Madras Knitwear (P) Ltd., another unit of the VEPZ, about 280 workers were left without jobs without any compensation being paid. According to the complainant, in order to avoid the payment of benefits due to the dismissed employees, the company transferred all workers to the Chennai unit. Furthermore, in August 2004, when workers of the Worldwide Diamonds Manufacturing Ltd. demanded payment of July wages, the management locked out the company for three days from 1 to 3 September.
5. 192. In its communication of 28 April 2005, the Government of India forwarded the following observations of the Government of Andhra Pradesh:
   • - As regards recommendation (a), the cases filed before the Industrial Tribunal against dismissal of 14 workers were at different stages of hearing, in which the Government could not intervene.
   • - As regards recommendation (b), the management of the Worldwide Diamonds Manufacturing Ltd. contended that workers were suspended or fined due to their poor performance. Mr. Sudhakar was dismissed on the grounds of his poor performance during his traineeship. He lodged a case before the Labour Court, which is now pending.
   • - As regards recommendation (c), workers in any industry employing 100 or more workers were required to issue a strike notice before resorting to a strike. In the present case, workers went on strike without producing such a notice. Furthermore, the allegations regarding brutal suppression of a strike by excessive police violence were not true. The police had intervened to maintain law and order. However, an independent and thorough investigation, with the cooperation of the complainant organization, would be initiated and if the allegations were found to be true, appropriate action would be taken against those responsible.
   • - As regards recommendation (d), the Government repeated the circumstances of the arrests.
   • - As regards recommendation (e), there were no restrictions on the right to collective bargaining imposed on the VEPZ workers. Worldwide Diamonds Manufacturing Ltd. had been instructed to allow the trade union to participate in the negotiation process. A meeting leading to resolving the disputes and the lifting of the lockout was held on 3 September 2004. The Government stated that the minutes of this meeting were annexed; however they have not been received.
   • - As regards recommendation (f), the role of the Grievance Redressal Officer (GRO) had been preformed by the Deputy Development Commissioner (DDC) of the zone with the view that most of the differences between the management and the workers could be resolved through dialogue and conciliation. However, an individual person or body, in coordination with the State Government, would be entrusted to look after the grievance of the workers, as recommended by the Committee.
   • - As regards recommendation (g), a new subsection (2) was inserted to section 2A of the Industrial Disputes Act, 1947. It read as follows: “(2) Notwithstanding anything in section 10, any such workman as is specified in subsection (1) may make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it in accordance with the provisions of the Act; and accordingly all the provisions of the Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute.” (A.P. Act 32 of 1987). Therefore, disputes relating to discharge, dismissal, retrenchment or otherwise termination of services of an individual worker, such worker may make an application directly to the Labour Court for adjudication of this dispute. The collective disputes were required to be raised first before a conciliation officer (section 4 of the Industrial Disputes Act) and the appropriate Government could refer such disputes for adjudication or arbitration under section 10 and 10A of the same Act.
6. 193. Concerning the complainant’s allegation that the Worldwide Diamonds Manufacturing Ltd. resorted to a lockout, the Government indicated that the workers went on a go-slow strike from 28 April 2004 demanding a revision of the incentive scheme and the management locked out the company as from 1 September 2004. The DDC held a joint meeting with the management and the workers’ representatives on 3 September 2004. As a result of negotiations, the lockout was lifted.
7. 194. The Government further contested the complainant’s allegation concerning the dismissals at Synergies Dooray Automotive Ltd. According to the Government, no worker was terminated or suspended illegally. As concerns the closing of the Madras Knitwear (P) Ltd., the Government indicated that the management had decided to shift the operation from the VEPZ to Chennai due to the lack of sufficient export orders. However, the salaries and bonuses were paid to the workers concerned. The company was holding negotiations with the workers for a better compensation package before the Deputy Commissioner of Labour.
8. 195. The Committee notes the information provided by the complainant and the Government. It regrets that, three years after the complaint was filed, the issue of the alleged cases of anti-union discrimination resulting in imposition of fines, dismissals and suspensions of trade unionists have not been resolved. The Committee recalls in this respect that cases concerning anti-union discrimination should be examined rapidly so that the necessary remedies can be really effective [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749]. The Committee requests the Government to take all necessary measures so as to ensure that the alleged cases of anti-union discrimination are examined promptly and, if it is confirmed that the imposition of the dismissals, suspensions and fines were linked with the legitimate trade union activities of the workers, to take measures to ensure that the dismissed workers are reinstated in their jobs without loss of pay and, if reinstatement is not possible and in cases of suspensions and fines, to ensure that adequate compensation so as to constitute sufficiently dissuasive sanctions is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard.
9. 196. The Committee also regrets that, despite its numerous requests, no independent and thorough investigation, with the cooperation of the complainant organization, had yet been carried out in relation to the allegations concerning the brutal suppression of the strike, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant’s local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers’ homes in order to threaten them so that they return to work. The Committee notes, however, the Government’s commitment in its latest reply to undertake an independent and thorough investigation and requests the Government to keep it informed of the outcome.
10. 197. The Committee regrets that no new information was provided by the Government in respect of the progress of the criminal cases brought by the police against the workers arrested during the strike in January 2002. It further notes that one of the three cases was withdrawn. The Committee therefore once again requests the Government to provide information thereof.
11. 198. The Committee notes the contradictory information received from the complainant and the Government as to the right to collective bargaining of the VEPZ workers and the right of the CITU Visakhapatnam Export Processing Workers’ Union to take part in negotiations with the management of the Worldwide Diamonds Manufacturers Ltd. The Committee requests the Government to provide the minutes of the negotiations which, according to the Government, took place in September 2004.
12. 199. Noting the Government’s indication that an individual person or body would be entrusted to look after the grievances of the workers, the Committee requests the Government to keep it informed of the measures taken and the progress made in ensuring that the roles of GRO and DDC are carried out by different persons or bodies.
13. 200. The Committee notes the information provided by the Government in respect of the amendment to the Industrial Disputes Act of 1947. The Committee notes, however, that firstly, the right to approach the court directly, without being referred by the State Government, is not conferred on suspended workers and, secondly, that such right is still not conferred on trade unions. The Committee therefore requests the Government to take all necessary measures, including the amendment of the Industrial Disputes Act of 1947, so as to ensure that suspended workers as well as trade unions could approach the court directly.
14. 201. As regards the recent allegations of the complainant, the Committee notes that, following the negotiations between the management and the workers’ representatives, the lockout at the Worldwide Diamonds Manufacturing Ltd. was lifted. The Committee further notes the contradictory information on the alleged dismissals and suspensions at the Synergies Dooray Automotive Ltd. The Committee therefore requests the Government to conduct an independent inquiry to thoroughly and promptly consider this allegation and, if it appears that the dismissals and suspensions occurred as a result of involvement by the workers concerned in the activities of a union, to ensure that those workers are reinstated in their jobs without loss of pay. If the independent inquiry finds that reinstatement is not possible, the Committee requests the Government to ensure that adequate compensation, so as to constitute sufficiently dissuasive sanctions, is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard. Finally, the Committee requests the Government to keep it informed of the result of the negotiations held with the workers of the Madras Knitwear (P) Ltd. before the Deputy Commissioner of Labour.