Report in which the committee requests to be kept informed of development - Report No 348, November 2007

Case No 2512 (India) - Complaint date: 21-AUG-06 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: The complainant alleges acts of anti-union discrimination and interference in trade union affairs through the creation of puppet unions, dismissals, suspensions and transfers of active trade union members, arbitrary reduction of wages, physical violence and lodging of false criminal charges against its members. It also alleges that the employer does not recognize it for the purpose of collective bargaining. Finally, it alleges that the legal system does not provide for sufficient protection of trade union rights

838. The complaint is set out in communications by the MRF United Workers’ Union dated 21 August and 26 September 2006, and 28 March and 15 June 2007.

1. 839. The Government sent its observation in a communication dated 14 September 2007.
2. 840. India has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 841. In its communications dated 21 August and 26 September 2006, and 28 March and 15 June 2007, the MRF United Workers’ Union alleges acts of anti-union discrimination and interference in trade union affairs through the creation of puppet unions, dismissals, suspensions and transfers of active trade union members, arbitrary reduction of wages, physical violence and lodging of false criminal charges against its members. It also alleges that the employer does not recognize the complainant organization for the purpose of collective bargaining. Finally, it alleges that the Indian legal system does not provide for sufficient protection of trade union rights.
2. 842. The complainant organization explains that it represents 954 out of 1,170 permanent workers of the Arakonam factory of MRF Limited, the leading tyre manufacturing company in India. It was duly registered on 29 December 2003.
3. 843. By way of background, the complainant explains that, in 1978, workers of the Arakonam factory tried to establish a trade union but failed, facing retaliatory measures by the management. In the same year, the management established a puppet union, the MRF Cycle Tyre Unit Employees’ Association. The office bearers of the Association had always been selected by the management. All permanent workers of the factory were obliged to pay trade union dues to the Association. Throughout the years, the management has been unilaterally imposing terms and conditions of service on workers through the so-called “settlements” entered into with the puppet union and by coercively securing signatures of permanent workers on empty notebooks indicating their acceptance of the “settlement”.
4. 844. In 1989, the workers of the factory, desirous of having an effective trade union to represent them, established the MRF Workers’ Union, affiliated to the Centre of Indian Trade Unions (CITU). The management took various measures to crush the union. The General Secretary of the union was dismissed. Several office bearers and members of the union were suspended for their trade union activities and disciplinary proceedings were initiated against them. One hundred apprentices and workers under probation were terminated from service because of their association with the union. Trade union members suffered from interdepartmental transfers and wage cuts. In addition, the management lodged over 25 false criminal complaints against the office bearers and members of the union. Significantly, all accused persons were acquitted. In September 1992, the management issued individual lockout notices to several members of the union and thereafter lifted the lockout in respect of the workers who agreed to abide by the decisions of the MRF Cycle Tyre Unit Employees’ Association. Seventy-one members of the union who disagreed continued to be locked out. Forty-four of them were dismissed and some opted to enter into individual settlements with the management. The General Secretary of the union succumbed to the pressure of the management and dissociated himself from the union. In these circumstances, the activities of the union gradually ceased. Legal proceedings regarding the dismissals of some of the members of the union for their trade union activities are still pending.
5. 845. About a decade later, in 2001–02, workers at the Arakonam factory once again decided to establish a genuine trade union that would represent their interests. Two workers, Messrs N. Ramathilagam and P. Bhaskar, were particularly active and for that reason were dismissed on 19 March and 25 May 2002, respectively, allegedly for availing of leave without prior permission and poor performance. Both workers have questioned the validity of their dismissals. The industrial disputes raised by them in this regard are pending before the Labour Court, Vellore. Despite the management’s opposition, the MRF United Workers’ Union was established in 2003.
6. 846. On 1 December 2003, the President of the complainant organization informed the management about the establishment of the union and of the names of its elected trade union office bearers. On 5 February 2004, the union communicated the list of its members. By that time, 898 of 1,029 permanent workers of the factory had joined the union. By its communication, the newly established trade union sought the recognition by the management of status as sole collective bargaining agent and requested that trade union dues for the MRF Cycle Tyre Unit Employees’ Association were no longer deducted from the wages of its members.
7. 847. The complainant alleges that, following its establishment, the management of the company embarked on a vicious campaign against the union and provides detailed information on the hostile treatment of the union and its members by the enterprise management.
8. 848. In particular, the complainant alleges large-scale transfers of trade union members to the departments or areas of work with which they were not familiar and had no training for. In several cases, that led to injuries. According to the complainant, the management took measures to ensure that no documentary records of such transfers existed. The complainant refers to the case of Mr D. Christopher, a member of its executive committee, who was transferred under oral orders on 3 May 2004 from the curing section in the tube plant to the bias tyre-building section in the main tyre manufacturing plant in order to ensure that there was no executive committee member of the complainant union in the tube plant. He demanded that the transfer order be issued in writing and, as a consequence, he was not allotted any work and kept idle for a day, following which a severe warning letter dated 4 May 2004 was issued to him for not complying with the order of his supervisor. Thereafter, for over two years, his payslips continued to indicate that he was working in the tube plant while, in fact, he had been working in the tyre plant. The members of the union have made individual representations to the management protesting against such transfers. In reply, the management considered that workers should be trained to work in all areas and could be utilized as per the exigencies of work and that there were no other motives behind the “job rotation”.
9. 849. In 2004, 27 workers were transferred after becoming members of the complainant organization. Ten members were transferred after they refused to sign the “settlement” of 22 December 2004 entered into by the management with its then puppet union, the MRF Cycle Tyre Unit Employees’ Association. Six members have been assigned new jobs. Thus, together with ten workers transferred for their efforts to form the complainant union in 2002, at least 56 office bearers and members of the complainant union have been transferred because of their union activities and at least six of them have been assigned new jobs resulting in lower wages, without issuing any written orders to that effect.
10. 850. The complainant further alleges that the management has discontinued the rotation practice in respect of several members of the complainant organization in the pre-compounding chemical section of the Banbury area, where, due to the hazards posed to the health of workers by chemicals, workers are usually engaged on a rotational basis. Moreover, the management does not provide them with the necessary protective clothing, gloves and masks. Nine members of the complainant organization have been continuously engaged in the hazardous Banbury pre-compounding chemical section following their transfers.
11. 851. It has also been the practice of the management to issue warning letters and show cause notices to the members of the union accusing them of “go-slow” actions or of poor performance and imposing penalties, including dismissals. The complainant explains that warning letters and memos form part of the service record of a worker and are taken into consideration when the penalty to be imposed on a worker is decided upon. Most of the members of the complainant organization had not been issued even a single warning letter or memo prior to the establishment of the union. However, following the establishment of the complainant organization, with a view to deliberately creating a blemish in the service records and with a view to creating a fear psychosis among the workers, the management has been arbitrarily issuing warning letters and memos to the office bearers and members of the complainant organization. Since January 2004, the management has issued over 660 warning letters and memos to the members of the complainant organization, many of which were issued in February 2004 when, during one week, members of the complainant organization wore black badges and did not eat at the factory canteen to protest against the attitude of the management towards their union. The management objected to their wearing black badges and issued warning letters to a large number of members of the union stating that their action was contrary to the standing orders of the company and that it could have chosen to take disciplinary action against them but was letting them off with severe warnings. Similarly, it also issued warning letters to a large number of members of the union stating that their action of not eating in the canteen had caused loss to the company and was against the standing orders of the company.
12. 852. At least 64 show cause notices were issued by the management to the members of the union to victimize them for their trade union activities between 2004 and 2007. Some were followed by dismissals. In addition to two workers dismissed for their efforts to establish the MRF United Workers’ Union, 19 trade union members were dismissed in 2004 and one in 2005. Four cases concerning dismissals are currently pending adjudication before the Labour Court, Vellore. The remaining 16 cases are at various stages of individual industrial dispute procedure. In its most recent communications, the complainant indicates that Mr D. Christopher, a member of its executive committee, was dismissed on 25 February 2007 and its General Secretary, Mr G. Shankar, was dismissed on 4 April 2007, bringing the number of dismissed trade unionists to 24.
13. 853. The management had also terminated services of 15 workers engaged as apprentices or under probation, despite their long years of service, for merely having interacted with the members or office bearers of the complainant organization. The complainant points out that, out of fear of losing their jobs, contract workers, apprentices and workers on probation do not belong to any union. Cases concerning five workers were pending before the Labour Court. Ten workers have raised individual industrial disputes in respect of their termination before the Labour Officer, Vellore, which is yet to issue the conciliation failure reports, which would enable these workers to apply to the Labour Court for the adjudication of their industrial disputes.
14. 854. Also, following the establishment of the union, in 2004, 37 trade union officials and members were suspended pending disciplinary proceedings for alleged acts of misconduct. The management has also imposed penalty of suspension without wages for various periods of time on 28 trade union members. According to the complainant, all suspensions were aimed at victimizing workers for asserting their freedom of association and, more importantly, at making them leave the union for fear of losing their employment. Other trade unionists were suspended in 2006 and 2007. According to the most recent communications of the complainant, two workers still remain under suspension.
15. 855. In addition, the complainant alleges that 92 trade union members suffered from arbitrary wages reduction.
16. 856. The complainant further alleges that, in order to weaken their union, the management adopted a practice of lodging false complaints against trade union and its members. On 17 February 2004, under the instructions of the management, a false complaint against three office bearers and two members of the complainant organization was made alleging that they had used caste names and had thus committed an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The complainant points out that those accused of the offences under the said Act cannot be released on bail and believes that the management considered that, by having key office bearers and members of the union arrested and detained, it could crush the union. However, the police did not act on the complaint and the management did not succeed in its designs to have trade union leaders arrested and detained.
17. 857. Furthermore, the management, through hired henchmen, threatened the members of the complainant organization with physical violence so as to force them to state that they belonged to the MRF Cycle Tyre Unit Employees’ Association. On 28 February 2004, the complainant organization made a complaint to the Superintendent of Police, Vellore, seeking that unauthorized persons be asked to leave the factory premises and filed Writ Petition before the Madras High Court seeking that the District Superintendent of Police be instructed to act upon the complaint. Fearing the physical violence against its members, the union advised them not to report for work as from 11 March 2004. On 18 March 2004, the High Court asked the Chief Inspector of Factories to report on the situation at the factory, who concluded that the situation was normal. The management considered the absence of workers from 11 to 18 March 2004 to be an illegal strike and therefore made corresponding deductions from their salaries. The complainant union has questioned the validity of this decision before the appropriate authority under the Payment of Wages Act which, instead of deciding the issue, has treated it as an industrial dispute in respect of which an order of reference needs to be issued.
18. 858. On 8 March 2004, the flag post of the complainant union and the union noticeboard at the factory gate were removed by the Highways Department at the behest of the management. On 11 and 13 March 2004, the henchmen hired by the management broke the glass windows of two buses of the company. A complaint was then filed against seven trade union members alleging that they had stoned two buses and stopped workmen from going to the factory. Four of these workers were dismissed. However, in the criminal proceedings held against them, they were acquitted of all charges.
19. 859. While the management was engaged in such efforts to wipe out the complainant union, it continued to deduct trade union dues from the wages of its members and transfer them to the MRF Cycle Tyre Unit Employees’ Association, in spite of the letter addressed by the complainant union to the management on 5 February 2004 seeking that such deductions not be made. In March 2004, the management coercively procured letters from 60 members of the complainant organization, in which they attested to be members of the MRF Cycle Tyre Unit Employees’ Association. In April 2004, the complainant organization filed a civil suit before the Madras High Court seeking a declaration that the complainant organization is the majority union of workers of the Arakonam factory and that the MRF Cycle Tyre Unit Employees’ Association does not have any representative capacity. In this submission, the complainant organization expressed its readiness to face a secret ballot to demonstrate that it has the overwhelming support of the workers of the Arakonam factory. The court initially permitted the complainant union to file a suit but then revoked its permission stating that it lacked territorial jurisdiction over the issues relating to the Arakonam factory. This decision was confirmed on appeal by a Division Bench of the High Court and subsequently by the Supreme Court.
20. 860. Earlier, on 9 February 2004, and then on 17 May 2004, the complainant organization made a representation to the Commissioner of Labour seeking that a secret ballot be held among workers of the factory to determine the majority union. On 30 June 2004, the Commissioner of Labour sent a reply to the union stating that no action could be taken on their representation, as the law did not provide for the determination of the majority union by secret ballot.
21. 861. On 4 July 2004, 300 members of the complainant union went outside the factory premises to draw the attention of the Government to the acts of anti-union discrimination perpetrated by the management, hoping that it would look into the issue and take the necessary action. However, such peaceful demonstrations of the workers have been to no avail and the Labour Department has shown a callous indifference to the plight of the workers.
22. 862. On 25 September 2004, Mr G. Shankar, the General Secretary of the union, suffered an electric shock when his shift supervisor deliberately turned on the electrical mains switch while Mr G. Shankar was performing electrical panel maintenance work. In reply to his representation, the management denied that any such incident had taken place. Mr G. Shankar then made a police complaint but the police refused to file the complaint. On 22 November 2004, Mr G. Shankar was threatened that he would be dismissed unless he ensured that all cases filed by the complainant organization against the management were withdrawn and he left the union. Two days later he was suspended on the false charge of intimidating his shift supervisor.
23. 863. On 25 November 2004, in view of the expiry, on 31 December 2004, of the term of the wage “settlement” entered into by the management with the MRF Cycle Tyre Unit Employees’ Association and apprehending that the management would once again enter into such an agreement, the complainant union raised an industrial dispute under section 2(k) of the Industrial Disputes Act before the Deputy Commissioner of Labour in respect of its charter of demands. Conciliation proceedings were accordingly initiated. However, the management, failed to appear before the Conciliation Officer on 9 and 17 December 2004. The proceedings were then rescheduled for 27 December 2004. However, on 22 December 2004, the management entered into yet another “settlement” with the MRF Cycle Tyre Unit Employees’ Association. Thus, instead of participating in the conciliation proceedings relating to the complainant union’s charter of demands, the management had signed an agreement with its puppet union nine days prior to the expiry of the previous “settlement”, thereby creating an obstacle to the declaration by the complainant organization of an industrial dispute.
24. 864. The “settlement” of 22 December 2004, which in no way can be considered a genuinely negotiated collective bargaining agreement, is another instance of unilateral imposition of the terms and conditions of employment by the management and is to be in force until 31 December 2008. Using threats of disciplinary actions and dismissals, the management coercively obtained the workers’ signatures on blank notebooks, which were later used as proof of their acceptance of the “settlement” or membership in the MRF Cycle Tyre Unit Employees’ Association. Despite the pressure, 147 members of the complainant union refused to sign either the blank notebook indicating their acceptance of the “settlement” or other papers given to them by the management. As a result, these workers saw their wages reduced and their requests for leave constantly refused. On 27 December 2004, the complainant organization duly notified the management that the “settlement” would not be binding on its members who were forced to affix their signatures and that the receipt of revised wages was without prejudice to their rights and contentions regarding the validity of the settlement.
25. 865. On 24 December 2004, the complainant union raised another industrial dispute under section 2(k) of the Industrial Disputes Act before the Deputy Commissioner of Labour in respect of the validity of the settlement of 22 December 2004. Conciliation proceedings in respect of both the industrial dispute regarding the charter of demands and the validity of the settlement were held together. The management falsely claimed before the Conciliation Officer that the new “settlement” was accepted by 1,003 workers and that only 137 workers had not accepted it. It thus claimed that the disputes of the complainant union were not industrial disputes within the meaning of the Industrial Disputes Act. On 28 February 2005, during the conciliation proceedings, the complainant union had expressed its willingness to prove its majority by secret ballot. It also sought that the management’s claim be tested by secret ballot. However, the Conciliation Officer denied the union’s request.
26. 866. The conciliation proceedings did not settle the disputes. The conciliation failure report was issued by the Conciliation Officer only on 20 June 2005, after the complainant union filed a Writ Petition before the Madras High Court and a notice to this effect was issued by the court. However, it failed to mention the dispute relating to the validity of the “settlement” of 22 December 2004. Once the report became available, the government of Tamil Nadu failed to refer the disputes for adjudication. The complainant union therefore filed a Writ Petition before the Madras High Court seeking the issue of a Writ of Mandamus directing the government of Tamil Nadu to refer the industrial disputes raised by the complainant for adjudication. This case is yet to be listed for hearing.
27. 867. Meanwhile, the management tried to cover up its acts of anti-union discrimination against the complainant union and its denial of collective bargaining rights to the members of the complainant union had been seeking to falsely project the matter as one of inter-union rivalry between the complainant organization union and the MRF Cycle Tyre Employees’ Association. It has also been making attempts to falsely project the complainant union as an unruly organization seeking to disrupt the functioning of the factory. On 12 January 2005, about two weeks before the Indian Republic Day when the complainant union was to hold a gate meeting and hoist the national flag, the management made a representation to the Deputy Superintendent of Police, Arakonam, alleging that the complainant union had been indulging in inter-union rivalry and had been disturbing the industrial peace after the majority union had signed a wage agreement with the management. It therefore sought that permission not be given by the police to the complainant union for hoisting the flag and conducting meetings anywhere near the company’s premises. The company thereafter filed an application to the district court making various false allegations against the complainant union. The company alleged that the complainant union had only 120 members and that there was an inter-union rivalry between the complainant union and the MRF Cycle Tyre Employees’ Association. It also alleged that the complainant union was out to obstruct the functioning of the Arakonam factory. The company therefore sought for the issue of an injunction restraining the complainant union and its members from gathering or in any way demonstrating within 200 metres of the factory premises. It also sought for an injunction restraining the complainant union and its members from interfering with the movement of staff and officers from and into the company’s premises and from in any way interfering with the movement of raw materials and finished goods from and into the factory. The company also filed interim applications, seeking orders of interim injunction. On 25 January 2005, the court granted the orders of interim injunction. The Civil Revision Petitions filed by the complainant union against the orders of injunction in the Madras High Court were dismissed. The main suit was decreed ex parte. The complainant organization is currently taking steps to get the ex parte decree set aside and have the matter decided on merits.
28. 868. In May 2006, with a view to make it appear that the MRF Cycle Tyre Employees’ Association is a democratic union, the management, through its hand-picked office bearers announced that elections by secret ballot would be held for the executive committee of the Association. The elections were held on 14 May 2006. Contrary to the management’s expectation, certain workers chose not to support the management’s nominees. The management refused to accept the electoral verdict and threatened the newly elected office bearers so as to force them to resign from their posts in the association. The management then tried to disrupt the general body meeting held by the association on 26 May 2006. However, due to the presence of the police at the request of the newly elected office bearers, who had anticipated such a problem, the meeting could go on.
29. 869. To penalize workers for exercising their free choice, the management began yet another anti-union campaign, including through the use of warning letters, disciplinary proceedings and suspensions. With a view to ensuring that the workers of the Arakonam factory were again deprived of any genuine trade union representation, the management set up a new trade union, the MRF Arakonam Workers’ Welfare Union. On 26 and 27 July 2006, the management representatives, threatening the workers with dismissal, coercively obtained the signatures of a large number of workers indicating that they were members of the new union. The management also informed the workers that those who became members of the new union would be given a 2,000 rupees (Rs) pay increase and an ad hoc advance of Rs.2500. In July 2006, trade union dues were deducted from the wages of over 900 workers and transferred to the newly established puppet union.
30. 870. The complainant indicates that, on 25 January 2007, the Labour Officer, Vellore, issued notices to the complainant organization and to the management of MRF Limited with a view to gathering information in respect of the present complaint. This exercise was undertaken by the Labour Officer for the purpose of enabling the Government of India to submit its reply on the matter to the ILO. Between January and March 2007, a Labour Officer of the government of Tamil Nadu had called representatives of the three trade unions in the factory and the management to ascertain the facts. While the report was produced in March 2007, the government of Tamil Nadu had not forwarded it to the Government of India.
31. 871. In February 2007, upon learning that the MRF United Workers’ Union had lodged a complaint to the Committee on Freedom of Association, the management of MRF Limited informed workers that making a complaint to the ILO was of no use, since it was not a court, the orders of which would be binding. Furthermore, it declared that the company’s money power would ensure that the Government would provide a favourable report. They threatened those workers who continued to support the MRF United Workers’ Union with dismissals. Workers were told that those who signed any document in support of the union’s complaint to the ILO would be dismissed. Moreover, one of the major shareholders of the company visited houses of several workers and cautioned their families that workers would lose their jobs unless they stopped supporting the complainant organization.
32. 872. Also in February 2007, false complaints have been lodged against six officers and members of the complainant trade union. Among these persons, Mr B.M. Baskaran, a member of the complainant union and the Vice-President of the MRF Cycle Tyre Unit Employees’ Association, was suspended on the basis of this false charge.
33. 873. Finally, the complainant indicates that the management has been recently encouraging the members of the complainant organization to change their trade union affiliation by offering a substantial increase of wages.
34. 874. The complainant emphasizes that, even when, during the elections on 14 May 2006, the management’s nominees for the executive committee of the MRF Cycle Tyre Unit Employees’ Association were defeated and workers elected their own representatives, the management coerced the members of the complainant organization to sign documents indicating that they were members of the MRF Arakonam Workers’ Welfare Union newly established by the management. Thus, even while the complainant union has in fact been the majority union in the Arakonam factory for about the last three years, not only has the management failed to recognize the complainant union but also resorted to numerous measures to destroy it.
35. 875. The complainant adds that the Industrial Disputes Act does not provide for any immediately effective means to deter the commission of all such acts of anti-union discrimination and interference in trade union activities, nor does it contain any provisions allowing for immediate relief to be provided in cases of anti-union discrimination or infringement of collective bargaining rights. Moreover, while the Industrial Disputes Act provides for prosecution of the management of companies for the commission of “unfair labour practices” under the Act, including certain acts of anti-union discrimination, and prescribes penalties for the commission of such acts, the courts can take cognizance of an offence punishable under the Act only when a complaint in this regard is made by, or under the authority of, the Government. In short, prosecution for unfair labour practices under the Act is dependent on the Government. In practice, the government of Tamil Nadu seldom prosecutes employers for the commission of acts of anti-union discrimination. According to the complainant, the Labour Department of the government of Tamil Nadu is under the grip of the influence of the management of MRF Limited. In particular, the failure by the Labour Department of the government to refer the union’s collective disputes regarding its charter of demands and the “settlement” of 22 December 2004 for adjudication under section 10(1) of the Industrial Disputes Act indicates that it is highly unlikely that the Government would sanction any request by the complainant union for the prosecution of the company for the commission of unfair labour practices.
36. 876. There is neither central nor Tamil Nadu legislation regarding the recognition of trade unions. Thus, employers in most states in India, including Tamil Nadu, are not statutorily bound to recognize trade unions representing the majority of the workers. However, a non-statutory Code of Discipline, adopted in 1961 by certain federations of employers and workers, prescribes procedures for the recognition of trade unions. According to the code, a union that satisfies the conditions for recognition prescribed therein may seek assistance from the relevant implementation machinery, i.e. the central or state labour machinery, when its request for recognition is not accepted by the employer. The code further prescribes the procedure for the verification of membership of a union, according to which, representativity is determined by the number of members on record. There is nothing in the code prescribing that the ascertainment of the majority union in a situation where more than one union seeks representative status for collective bargaining purposes should be done by secret ballot. The code is of a voluntary and recommendatory nature and does not prescribe any legal sanctions for failure to observe a recommendation made under it.
37. 877. The complainant considers that an objective verification of the representative status of the complainant union and the other unions in the Arakonam factory can be made only by holding a secret ballot for the following reasons: the management of the company had been making deductions from the wages of members of the complainant organization and transferring them to the MRF Cycle Tyre Unit Employees’ Association and, subsequently, to the MRF Arakonam Workers’ Welfare Union; the management has also been coercively obtaining signatures from the members of the complainant union to falsely indicate that they had left the complainant organization. Such documents would falsely make it appear that members of the complainant union were no longer its members, whereas it represents 909 out of 1,170 permanently employed workers at the Arakonam factory. The management contests, however, that over 900 permanent workers are members of the MRF Arakonam Workers’ Welfare Union and 72 permanent workers are members of the MRF Cycle Tyre Unit Employees’ Association. It appears therefore that a substantial number of workers have been compelled to have dual or even triple trade union membership against their will. Thus, the complainant considers that only a secret ballot conducted by a neutral body in the presence of independent observers would ensure that the workers can indicate their support for the union which they really wish to be represented by, without any fear of reprisal by the management.
38. 878. Under the Industrial Disputes Act, adjudication of all collective industrial disputes pursuant to the failure of conciliation proceedings is conditional upon a reference made by the Government under section 10(1) of the Act. The Government often takes months to decide whether or not to refer the dispute for adjudication and very often declines to make such reference, driving workers to years of litigation. In the present case, following the issue of the conciliation failure report on 20 June 2005 in respect of the industrial dispute relating to the complainant union’s charter of demands, the Government has still not made its decision. In these circumstances, the complainant has been obliged to address the High Court to secure the Government’s decision. However, even assuming that the complainant union succeeds in obtaining such an order from the High Court, the Government may choose not to refer the disputes for adjudication. In addition, even if the disputes are in fact taken up for adjudication, considering that the judicial system in India is fraught with massive delays, it could take several years for the disputes to be adjudicated and further appellate proceedings to be completed.
39. 879. The complainant union seeks that the Government of India and the provincial government of Tamil Nadu be asked to take appropriate measures to ensure that: the management of the company no longer engages in acts of anti-union discrimination against the officials and members of the complainant organization; all its members dismissed for their trade union activities are reinstated in service with all consequent benefits, including full payment of lost wages; all its members suspended for their trade union activities are allowed to resume work and are granted all consequent benefits, including arrears of wages; all pending disciplinary proceedings against its members initiated on the grounds of their trade union activities are dropped; the false criminal charges against its members are also dropped and that the concerned workers are suitably compensated; trade union members who were subjected to transfers after the establishment of the complainant organization are allowed to return to their previous workplaces; its members are not discriminated against in the matter of wages and other benefits; its members are not engaged in the pre-compounding chemical section of the Banbury area of the Arakonam factory in a discriminatory manner; the representative status of the complainant union and other unions at the Arakonam factory are determined expeditiously by secret ballot conducted by a neutral body in the presence of independent observers; and that the management respects the collective bargaining rights of workers of the Arakonam factory by entering into collective bargaining with the trade union determined as the majority union.
40. B. The Government’s reply
41. 880. In its communication dated 14 September 2007, the Government indicates that this case falls under the jurisdiction of the State Government of Tamil Nadu. The matters raised in this case have been examined by the Deputy Commissioner of Labour of the State Government, who had been instructed to call both the enterprise management and the complainant trade union to make inquiries and to settle the issues raised in the complaint. The Government forwards the information provided by the Tamil Nadu Government. The Government also points out that India has a well-established conciliation machinery, both at the state and the national levels to address the grievances of the social partners. However, the complainant trade union has taken no recourse to these established institutions of various levels before submitting its complaint. The Government therefore questions whether the Committee should examine this complaint.
42. 881. According to the information provided by the Tamil Nadu Government, three trade unions exist at the enterprise: the complainant union, the MRF United Workers’ Union, the MRF Arakonam Workers’ Welfare Union and the MRF Cycle Tyre Unit Employees’ Association.
43. 882. The Government acknowledges that pursuant to the bipartite settlement between the management and the MRF Cycle Tyre Unit Employees’ Association dated 22 December 2004, workers are paid on a “piece per rate” basis. The settlement is binding on the parties. The complainant union is not a party to the settlement. The payment of wages on “piece per rate’ basis is not prohibited by law. However, if the complainant union is aggrieved by the bipartite settlement, it can raise a dispute before the Conciliation Officer. If the issue is not settled through conciliation, it may be referred for adjudication.
44. 883. With regard to the allegation that the management of the company established a puppet union, elected its leadership, deducted trade union dues from the wages of all permanent workers and transferred them to the puppet union, unilaterally imposed terms and conditions of service on workers through “settlements” with the puppet union, the Government indicates that, if the union dues are deducted from the wages of workers without their consent, the aggrieved workers can file a claim under the Payment of Wages Act for recovery of illegal deductions. None of the workers has come forward with any complaint of illegal deductions from their salaries. Furthermore, if the union or workers is aggrieved by the bipartite settlement, it can raise a collective dispute under the Industrial Disputes Act.
45. 884. With regard to the recognition of trade unions, the Government explains that in Tamil Nadu, recognition of a trade union is neither a statutory right granted to trade unions nor a statutory obligation imposed on enterprise management. In fact, in Tamil Nadu, there is no legislation relating to the recognition of trade unions as majority unions or as collective bargaining agents. If the complainant union is aggrieved by the refusal of the management to recognize it, it can address the State Evaluation and Implementation Committee, a tripartite body, which assesses the membership of trade unions in a given industry or establishment through verification of records and recommends to the employer to recognize one of the unions. The Government further indicates that the membership and subscription register and Form E, submitted by the complainant union under the Trade Union Act 1926 has been verified. The claim of the union that 945 workers (representing 70.66 per cent of the total permanent workforce) are members of the union is supported by documents. The union could have addressed the State Evaluation and Implementation Committee for the recognition.
46. 885. With regard to the allegation that about 56 office bearers and members of the union were transferred and six of them were assigned new jobs resulting in lower wages, the Government indicates that the management admits to have effected interdepartmental and intradepartmental transfers and explains that such transfers are permissible if authorized under the certified standing orders or under the terms of appointment. Transfers per se are not illegal, unless they are contrary to the provisions of the certified standing orders or terms of appointment applicable to the worker concerned. Workers aggrieved by the transfer orders can raise a dispute before the conciliation machinery. If the dispute is not settled, it can be brought before a judicial body established under the Industrial Disputes Act.
47. 886. The Government notes the complainant’s allegation to the effect that warning letters and memos on flimsy grounds as well as show cause notices for initiation of disciplinary proceedings for their dismissal were issued to the members of the complainant trade union with a view to creating a blemish in their service records; 30 office bearers, including Mr G. Shankar, General Secretary, and other members of the union were suspended on false grounds; 28 members of the union were imposed penalty of suspension, which resulted in loss of wages; 22 members of the union were dismissed; and that office bearers and members of the union were implicated in false criminal cases. In this respect, the Government indicates that while the complainant union provides documents to establish that workers were frequently transferred, demoted, suspended and issued memos and warning letters after they joined the union, the union fails to establish that these actions on the part of the management were intentional and mala fide. There are institutional mechanisms, such as conciliation, labour courts and industrial tribunals to which workers can have recourse to redress their grievances. Specifically, if any act of discrimination is practised by the management, as alleged by the union, the union may raise a dispute under section 2(k) of the Industrial Disputes Act before the Conciliation Officer.
48. 887. With regard to the criminal charges, only the competent investigating agencies and courts can determine whether the charges brought are well-founded. In this respect, the alleged cases of false criminal charges are still under the investigation by the police. In particular, with regard to the alleged false charges initiated against Mr B.M. Baskaran who, thereafter, was placed under suspension and Mr D. Christopher, dismissed, the Government indicates that only a judicial body can determine whether the actions taken against these two trade unionists were in violation of the legislation. The Government indicates that Mr Baskaran’s and Mr Christopher’s strained relation with the management cannot be ruled out.
49. 888. The Government further notes the complainant’s statement that while the Industrial Disputes Act provides for prosecuting and penalizing the management of the company for “unfair labour practices”, the court can only take cognizance of an offence when a complaint in this regard is referred to it by the Government and that an industrial dispute relating to the complainant union’s charter of demands is still pending, as the Government had not taken a decision on referring this case to the court, despite the fact that a “failure of conciliation” report was issued on 20 June 2005. In this respect, the Government indicates that, on 28 March 2007, an order had been issued by the Labour and Employment Department. It further explains that an employer can be prosecuted for committing an “unfair labour practice”, only if the Labour Court or the Industrial Tribunal constituted under the Industrial Disputes Act finds that a particular action of the employer amounts to an unfair labour practice as defined under the same Act. Only then a prosecution could be launched for committing an “unfair labour practice”. The Government can not, suo moto, come to the conclusion that a particular act of the employer amounts to an “unfair labour practice”.
50. 889. With regard to the alleged cases of suspension, the Government states that the complainant fails to specify whether the suspension was imposed as a punishment or simply as a measure pending inquiry. The Government explains that suspension pending inquiry is usually connected with a disciplinary action initiated against the worker and, in this case, the worker has to wait for the completion of the disciplinary action. No dispute could be raised pursuant to the labour laws until the inquiry is completed. If the suspension is a punishment for misconduct, it is compulsory for the employer to follow the procedure prescribed by the legislation before imposing such a punishment. The aggrieved worker can raise a dispute under the Industrial Disputes Act regarding the suspension imposed as a punishment. If the issue is not amicably settled, it can be referred to the Labour Court for adjudication.
51. 890. The Government further indicates that the complainant failed to prove that the enterprise management used threats against supporters of the complainant trade union. As to the warning letters issued to the members of the complainant trade union, subsequently to the lodging of the present complaint in August 2006, the Government indicates that while it is true that warning letters were issued to the members of the union, that in itself does not constitute a violation of labour laws or infringement of the workers’ rights.

C. The Committee’s conclusions

1. 891. The Committee notes that the complainant, the MRF United Workers’ Union, alleges that the management of MRF Limited subjected the members of the complainant trade union to anti-union discrimination. In particular, the complainant alleges filing of warning notices and memos, show cause notices, dismissals, suspensions and transfers of active trade union members, arbitrary reduction of wages and various acts of harassment and intimidation. The complainant further alleges the employer’s interference in trade union affairs through the creation of puppet unions. It also alleges that the employer does not recognize the complainant organization for the purpose of collective bargaining and refuses to bargain collectively with it, preferring to deal with its puppet union. Finally, the complainant alleges that the legal system does not provide for a sufficient protection of trade union rights.
2. 892. The Committee notes the Government’s communication by which it submits the observations of the Government of Tamil Nadu and also raises a preliminary question of receivability of the complaint. According to the Government, the complainant did not use the available state and national machinery to settle the issues raised in the present complaint. In this respect, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Rules of procedure for the examination of complaints alleging violations of freedom of association, para. 30].
3. Anti-union discrimination
4. 893. The Committee notes the detailed and extensive information (with supporting documentation) provided by the complainant on the alleged acts of anti-union discrimination committed by the management of MRF Limited. The Committee notes with concern that the complainant’s attempts to bring the attention of the authorities to the violation of trade union rights at the Arakonam factory either through demonstrations or appeals to relevant authorities of the government of Tamil Nadu, in particular the Inspector of Factories, the Commissioner of Labour, the authorities under the Payment of Wages Act and even the police appear to have been to no avail and that the government of Tamil Nadu has not only failed to fully examine the complainant’s allegations but has also failed to refer the pending industrial disputes for adjudication.
5. 894. The Committee notes the Government’s statement that, while the complainant union provided documents to establish that workers were frequently transferred, demoted, suspended, issued memos and warning letters and dismissed after they joined the union, the union failed to establish that these actions on the part of the management were intentional and mala fide or constituted anti-union discrimination. The Government further states that the union or workers could have addressed the existing institutions established under the Industrial Disputes Act to redress their grievances.
6. 895. The Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. No one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished. It further recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissals, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate, which they hold from their trade unions. The Committee considers that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 769, 772 and 799].
7. 896. The Committee recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835]. The Committee considers that as long as protection against anti-union discrimination is in fact ensured, the methods adopted to safeguard workers against such practices may vary from one State to another; but if there is discrimination, the government concerned should take all necessary steps to eliminate it, irrespective of the methods normally used [see Digest, op. cit., para. 816]. The Committee notes that throughout its reply, the Government indicates that while the complainant trade union provides documentary evidence of transfers, suspensions, dismissals, memos, warning and show cause notices, it fails to prove that these actions taken by the management against trade union officers and members of the complainant trade union constituted anti-union discrimination. In this respect, the Committee considers that since it may often be difficult, if not impossible, for a worker to prove that he or she has been the victim of an act of anti-union discrimination, the legislation, or practice and processes should provide ways to promptly remedy these difficulties. The Committee notes that most of the cases concerning dismissals of permanent and other workers in 2004–06 are still pending before either the Labour Officer or the Labour Court. In these circumstances, the Committee requests the labour and judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasizes that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts [see Digest, op. cit., para. 827].
8. 897. The Committee notes with concern that, in addition to the dismissal of 22 union members over the last few years, the factory most recently dismissed Mr G. Shankar, General Secretary of the complainant trade union (February 2007) and Mr D. Christopher, a member of its executive committee (April 2007). The Committee urges the Government to conduct an independent inquiry without delay into all alleged acts of anti-union discrimination suffered by the officials and members of the MRF United Workers’ Union and, if these allegations are found to be true, to provide redress for the damages suffered. Specifically, the Committee requests the Government to ensure that all workers dismissed for their trade union activities are reinstated in service with all consequent benefits, including full payment of lost wages, subject to substantive evidence and/or information warranting the contrary; all workers suspended for their trade union activities are allowed to resume work and are granted all consequent benefits, including arrears of wages; all pending disciplinary proceedings initiated on the grounds of trade union membership and activities are dropped; false criminal charges against trade union members are dropped and that the concerned workers are compensated; trade union members transferred because of their membership or union activity are allowed to return to their previous workplaces. The Committee further requests the Government to take the necessary measures to ensure that the members of the complainant organization are not discriminated against in the matter of wages and other benefits and that they are not engaged in the pre-compounding chemical section of the Banbury area of the Arakonam factory in a discriminatory manner. The Committee requests the Government to keep it informed in respect of the above.
9. Interference in trade union affairs
10. 898. The Committee notes the complainant’s allegations of the employer’s interference in its internal affairs through the creation of puppet unions and anti-union tactics in the form of threats, pressure, filing of false complaints against the complainant trade union, presentation of statements to workers confirming their membership in the puppet union and financial incentives offered to workers to encourage them to change their trade union affiliation. The Committee notes the Government’s statement to the effect that the aggrieved workers or the union can address the competent bodies under the Industrial Disputes Act in order to redress their grievances. Once again, the Committee regrets the inaction of the government of Tamil Nadu in the face of the numerous and detailed allegations put forward by the complainant. It therefore urges the Government to conduct an independent inquiry without delay into all allegations of interference by the factory management into trade union internal affairs and, if the allegations of the complainant are found to be true, to take all necessary steps to ensure that there are sufficiently dissuasive sanctions imposed so that the management refrains from any further such acts so as to safeguard the independence of any workers’ organization at the factory and, in particular, so as to ensure that the complainant organization may carry out its activities freely.
11. Insufficient protection of trade union rights
12. 899. The Committee notes the complainant’s allegation that neither national nor state legislation provides for sufficient protection against acts of anti-union discrimination and interference in trade union internal affairs and that available legal procedures are long and burdensome. The Committee recalls that the Government is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned and considers that the legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination. It further recalls that legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations [see Digest, op. cit., paras 813, 817 and 862]. The Committee therefore requests the Government to actively consider, in full and frank consultations with the social partners, legislative provisions expressly sanctioning violations of trade union rights and providing for sufficiently dissuasive sanctions against acts of anti-union discrimination and interference in trade union internal affairs. It requests the Government to keep it informed of the steps taken or measures envisaged in this respect.
13. 900. The Committee further notes the complainant’s allegation that access to justice by workers and trade unions is conditional upon a reference for adjudication made by the competent authorities. The Committee recalls its conclusions in Case No. 2228 where it noted 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 a right is still not conferred on trade unions and requested 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 [see 338th Report, para. 200]. The Committee urges the Government, in consultation with the social partners, to amend the relevant provisions of the Industrial Disputes Act so as to ensure that workers and trade unions may approach the court directly, without being referred by the State Government and to keep it informed of the measures taken or envisaged in this respect.
14. Collective bargaining
15. 901. The Committee notes the complainant’s allegation that the management of the enterprise refuses to accept its majority status and, therefore, recognize it as a collective bargaining agent, preferring to determine working conditions through “settlements” concluded with a puppet union. It further notes the complainant’s allegation that, except for the non-binding Code of Discipline adopted in 1961, neither national nor Tamil Nadu legislation provides for the procedure of recognition of trade unions. Moreover, even the code does not provide for a possibility to ascertain the majority union in a situation where more than one union seeks representative status for collective bargaining purposes through a secret ballot.
16. 902. The Committee notes that according to the Government, in Tamil Nadu, there is no legislation relating to the recognition of trade unions as majority unions or as collective bargaining agents. If the complainant union is aggrieved by the refusal of the management to recognize it, it can address the State Evaluation and Implementation Committee, a tripartite body, which assesses the membership of trade unions in a given industry or establishment through verification of records and recommends to the employer to recognize one of the unions.
17. 903. Firstly, with reference to the above principles concerning the protection against acts of anti-union discrimination and interference in trade union internal affairs, the Committee recalls the importance of the independence of the parties in collective bargaining and stresses that negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by, or under the domination of, employers or their organizations. Participation in collective bargaining and in signing the resulting agreements necessarily implies independence of the signatories from the employer or employers’ organizations. It is only when their independence is established that trade union organizations may have access to bargaining [see Digest, op. cit., paras 868 and 966].
18. 904. It further considers that employers should recognize for collective bargaining purposes the organizations representative of the workers employed by them [see Digest, op. cit., paras 952 and 953]. In order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of such procedures, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect [see Digest, op. cit., para. 971]. In this respect, the Committee considers that, in order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied: representativeness and independence. The determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity [see Digest, op. cit., para. 967]. The Committee considers that, in the present case, in light of the information provided by the complainant as the background to this case and its allegations, the determination of the most representative trade union by secret ballot is not only an acceptable but a desirable way to ensure that workers exercise their right to choose the organization which shall represent them in collective bargaining. The Committee notes the Government’s indication that following verification, the claim by the MRF United Workers’ Union that it represents the majority of the workers in the Arakonam factory is confirmed and that the complainant trade union can address the State Evaluation and Implementation Committee for recognition, which then can recommend to the employer to recognize the union. In these circumstances, and taking into account the fact that the abovementioned Committee can only issue conclusions of a recommendatory nature and the complainant’s allegation that the enterprise management refuses to recognize it, the Committee requests the Government to take appropriate measures to obtain the employer’s recognition of that union for collective bargaining purposes. Such recognition of the majority union is all that much more important in light of the steps that had been taken by the enterprise to bypass the MRF United Workers’ Union and enter into a “settlement” with an admittedly minority union. The Committee requests the Government to keep it informed in this respect.
19. 905. Finally, the Committee requests the Government to solicit information from the employers’ organizations concerned, as well as those of the enterprise concerned, with a view to having at its disposal their views on the questions at issue.

The Committee’s recommendations

1. 906. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
2. (a) The Committee urges the Government to conduct an independent inquiry without delay into all alleged acts of anti-union discrimination suffered by the officials and members of the MRF United Workers’ Union and, if these allegations are found to be true, to provide redress for the damages suffered. Specifically, the Committee requests the Government to ensure that:
3. – all workers dismissed for their trade union activities are reinstated in service with all consequent benefits, including full payment of lost wages subject to substantive evidence and/or information warranting the contrary;
4. – all workers suspended for their trade union activities are allowed to resume work and are granted all consequent benefits, including arrears of wages;
5. – all pending disciplinary proceedings initiated on the grounds of trade union membership and activities are dropped;
6. – false criminal charges against trade union members are dropped and that the concerned workers are compensated;
7. – trade union members transferred because of their membership or union activities are allowed to return to their previous workplaces.
8. The Committee further requests the Government to take the necessary measures to ensure that the members of the complainant organization are not discriminated against in the matter of wages and other benefits and that they are not engaged in the pre-compounding chemical section of the Banbury area of the Arakonam factory in a discriminatory manner. The Committee requests the Government to keep it informed of the outcome of the inquiries carried out.
9. (b) The Committee requests the labour and judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasizes that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts.
10. (c) The Committee urges the Government to conduct an independent inquiry without delay into all allegations of interference by the factory management into trade union internal affairs and, if the allegations of the complainant are found to be true, to take all necessary steps to ensure that there are sufficiently dissuasive sanctions imposed so that the management refrains from any further such acts so as to safeguard the independence of any workers’ organization at the factory and, in particular, so as to ensure that the complainant organization may carry out its activities freely. It requests the Government to keep it informed in this regard.
11. (d) The Committee requests the Government to actively consider, in full and frank consultations with the social partners, legislative provisions expressly sanctioning violations of trade union rights and providing for sufficiently dissuasive sanctions against acts of anti-union discrimination and interference in trade union internal affairs.
12. (e) The Committee urges the Government, in consultation with the social partners, to amend the relevant provisions of the Industrial Disputes Act so as to ensure that suspended workers and trade unions may approach the court directly, without being referred by the State Government.
13. (f) The Committee requests the Government to take appropriate measures to obtain the employer’s recognition of the MRF United Workers’ Union for collective bargaining purposes. The Committee requests the Government to keep it informed in this respect.
14. (g) The Committee requests the Government to consider laying down objective rules for the designation of the most representative union for collective bargaining purposes, when it is not clear by which union the workers wish to be represented. It requests the Government to keep it informed in this regard.
15. (h) The Committee requests the Government to solicit information from the employers’ organizations concerned, as well as those of the enterprise concerned, with a view to having at its disposal their views on the questions at issue.