Effect given to the recommendations of the committee and the Governing Body - Report No 365, November 2012

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

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

1. 79. 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 its members, at its March 2011 meeting [see 359th Report, paras 67–89]. On that occasion, the Committee noted with deep concern new allegations submitted by the complainant, which included assertions that the employer had entered into a settlement with the MRF Arakonam Workers’ Welfare Union (MRFAWWU) (which the complainant alleged is a puppet union); that the employer had threatened workers with dismissal in order to ensure compliance with the terms of the settlement; that police acting at the behest of the employer attacked and injured members of the complainant union while the members were peacefully protesting the settlement; that the employer initiated a lockout and frivolously filed criminal charges against union members in response to the strike; and that the High Court had mandated an inherently unfair verification procedure to determine whether the complainant or the MRFAWWU was the most representative union, and that this verification procedure did not include a secret ballot process. The Committee urged once again the Government to provide: information on the measures taken to ensure industrial peace at the undertaking; updated information on the status of all pending court cases concerning dismissed workers; detailed observations regarding all pending cases of allegedly false criminal charges brought against members and officers of the MRF United Workers’ Union (MRFUWU), including an explanation of the concrete facts that formed the basis of these charges; the updated information on the status of the cases concerning alleged transfers of trade union members because of their membership in union activities and regarding actions taken by the state government in this regard; and any new information concerning the steps taken by the Government to obtain the employer’s recognition of the MRFUWU for collective bargaining purposes. The Committee recalled that it had previously requested the Government to actively consider the adoption of legislative provisions in furtherance of trade union rights and therefore requested the Government to encourage the government of Tamil Nadu to address this matter urgently and to provide information on all measures taken in order to bring legislation into conformity with freedom of association principles, and more specifically, to indicate whether consideration has been given to the adoption of legislative provisions that further the goal of preventing anti-union discrimination and the infringement of trade union rights, amend all relevant provisions of the Industrial Disputes Act, and establish objective rules for the designation of the most representative union for collective bargaining purposes.
2. 80. In its communication dated 11 January 2012, the Government reiterates the observations it had previously provided. In particular, it indicates that all cases of dismissals alleged in this case are still pending before the relevant courts. With regard to the alleged unfair labour practices (disciplinary actions and show cause notices), the Government considers that it is the right of the employer to take disciplinary action on any misconduct of a worker regardless of the worker’s trade union affiliation and suggests that it was up to the complainant to address the competent authorities which could have looked into each issue in a proper manner.
3. 81. With regard to the settlement entered into by the management with the MRFAWWU, the Government indicates that the High Court of Madras has allowed the MRFAWWU and the management to sign a bipartite agreement. It was signed on 5 May 2009 and 1,113 out of 1,396 workers have accepted the wage increase benefits. The Government indicates that if the management is prepared to offer the same offer to members of the complainant union, the responsibility to accept the same wages belongs to them. The Government also indicates that, according to the enterprise management, workers are very happy with the salary and various welfare activities provided to them. The Government also indicates that no members of the complainant union were dismissed from service on account of their trade union activities. No workers were suspended pending the inquiry on account of their trade union activities. It is the policy of the management not to interfere in the internal affairs of trade unions and their activities. Any suspension or dismissal of workers is based on the gravity of the misconduct committed, irrespective of the trade union affiliation.
4. 82. With regard to the issue of determining representative status of trade unions, the Government considers that it is not its duty to conduct secret ballots to determine representative character of a union. The Government reiterates that, as regards the complainant’s claim for representative status, according to the enterprise management, the union having a majority of workers as its members has been recognized and various settlements have been entered into with the said union. The management always recognizes the trade union which enjoys the majority membership and negotiates with that recognized union. The complainant being a minority union has no right to insist that the management negotiates with it. The state government of Tamil Nadu considers that the reply of the management seems to be reasonable and convincing and therefore may be agreed to.
5. 83. With regard to the recognition of the complainant union, the Government reiterates that the complainant organization has approached the High Court of Madras seeking recognition without going through the prescribed process before the State Evaluation Committee set out in the Code of Discipline. It further reiterates that there is no statutory provision on the recognition of trade unions and that it is up to the management to recognize the union or not. Finally, it reiterates that there is no state law for trade union recognition and hence this subject was placed before the State Labour Advisory Board (a non-statutory tripartite body) on 20 February 2010 for policy decision in this regard.
6. 84. The Government concludes by stating that the government of Tamil Nadu has examined in detail all the allegations in this case and has taken with due seriousness the recommendations of the Committee. The Government declares that India has a well-established conciliation machinery both at the state and national levels to redress the grievances of the working community. The Government considers that it has acted fairly and within its ambit, thus industrial peace and harmony is maintained in the State.
7. 85. The Committee notes the information provided by the Government. It notes with regret that to a large extent the Government reiterates its previous observations and deplores the general lack of progress in addressing the issues raised in this case. The Committee is particularly concerned at the fact that dismissal cases are still pending before the courts. The Committee recalls that 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 the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 826]. The Committee expects that the outstanding case will be concluded without delay and urges the Government to keep it informed of the outcome.
8. 86. The Committee further notes the Government’s indication that the union members who felt that they were subject to unfair labour practices should have approached the competent authorities to get a fair redress. Recalling that this case, involving numerous allegations of such practices, including cases of suspension, show cause notices and other disciplinary actions, as well as allegations of filing, by employer, of false criminal charges against trade unionists on the basis of which they have been subsequently dismissed, was lodged in 2006, further recalling that the Industrial Disputes Act of 1947 does not allow suspended workers or trade unions to approach the courts directly, without being referred by the state government [see Case No. 2228 concerning India], and in light of the apparently lengthy court procedures in dealing with cases of alleged anti-union discrimination, the Committee is of the opinion that the competent labour authorities should have begun inquiring into the allegations immediately after they had been brought to their attention, as had been requested by the Committee, so as to take suitable measures of redress should allegations of anti-union discrimination brought to their attention be proved. While regretting that no new information has been provided by the Government on the abovementioned allegations, the Committee requests the complainant to provide all relevant updated information in this regard.
9. 87. With regard to the Committee’s previous recommendations that the Government actively consider the adoption of legislative provisions in furtherance of trade union rights, the Committee notes that the Government reiterates that there is no state law for trade union recognition and hence this subject was placed before the State Labour Advisory Board (a non-statutory tripartite body) on 20 February 2010 for a policy decision. It requests the Government to provide relevant information on any decision taken by the Board. Furthermore, while noting the Government’s position that India has a well-established conciliation machinery both at the state and national levels to deal with grievances of the working community and that the existing domestic laws are adequate, the Committee regrets that the absence of a clear objective and precise procedure for determining the most representative union has led to the lack of resolution of the matters raised in this case. The Committee therefore once again requests the Government to encourage the government of Tamil Nadu to address this matter urgently and to provide information on all measures taken in order to bring legislation into conformity with freedom of association principles, and more specifically, to indicate whether consideration has been given to the adoption of legislative provisions that further the goal of preventing anti-union discrimination and the infringement of trade union rights, amend all relevant provisions of the Industrial Disputes Act, and establish objective rules for the designation of the most representative union for collective bargaining purposes.