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- 24. The Committee last examined this case, which concerns allegations of anti-union discrimination and interference in trade union affairs through the creation of a puppet union, dismissals, suspensions and transfers of trade union members, arbitrary reduction of wages, physical violence and lodging of false criminal charges against trade union members, at its October–November 2015 meeting [see 376th Report, paras 24–41, approved by the Governing Body at its 325th Session]. On that occasion, the Committee recalled that since the beginning of its examination of the case, it has observed that the lack of a clear, objective and precise procedure for determining the most representative union has led to the lack of resolution of the matter and requested the Government once again to actively consider, in full and frank consultations with the social partners, establishing objective rules for the designation of the most representative union for collective bargaining purposes, and to keep it informed in that regard. The Committee further noted with great concern that nearly all legal proceedings concerning the alleged anti-union dismissals remained pending many years after the termination of the plaintiffs’ employment and firmly urged the Government to ensure that the judgments of the court of first instance directing reinstatement of workers with continuity of service and back wages are implemented pending the appeal proceedings before the Madras High Court, and to provide it with detailed information on the progress made in that regard. The Committee also urged the Government once again to provide detailed and updated information on all cases of allegedly false criminal charges being brought against members and officials of the Madras Rubber Factory United Workers’ Union (MRFUWU), including the case registered against members of the complainant union in the wake of the events of 30 July 2009 in Chennai (CC No. 1223 of 2010), pending before the Court of Chief Metropolitan Magistrate, Egmore, Chennai. Furthermore, the Committee once again requested the Government to give due consideration to the adoption of legislative provisions that further the goal of preventing anti-union discrimination, including by providing for sufficiently dissuasive sanctions against such acts. Finally, the Committee urged the Government to conduct an independent judicial inquiry into the allegations of excessive use of police force during the July 2009 peaceful demonstration organized in Chennai, with a view to clarifying the facts and determining the justification for police action and responsibilities and to keep it informed of the outcome.
- 25. In its communication dated 6 October 2016, the complainant provides additional information on a number of points. It indicates that the Special Leave Petition (SLP) filed by the management of the Arakkonam factory of MRF Ltd (hereinafter: the factory) and the Arakkonam MRF Workers’ Welfare Union (AMRFWWU) against the 2009 judgment of the Madras High Court that had directed the Government of the State of Tamil Nadu (hereinafter: State Government) and the Commissioner of Labour to conduct a verification procedure prescribed under the Code of Discipline for determination of the most representative union was finally withdrawn in December 2015 but that neither the Government nor the State Government pronounced itself on the need to comply with the Committee’s recommendations to take appropriate measures to obtain the employer’s recognition of the complainant for collective bargaining purposes. Following the withdrawal of the SLP and the complainant’s request to this effect, a verification exercise to determine representative trade unions in the factory was conducted in March 2016. However, the complainant alleges that the verification process presented serious flaws and its results were manipulated so as to lead to the determination of the AMRFWWU as the sole collective bargaining agent for the factory, even though according to the complainant, this union is neither representative nor independent (according to the results, the AMRFWWU has 826 members and the complainant 778 members). In particular, the complainant alleges that: (i) the verification process was conducted by Ms Kalaivani, Joint Commissioner of Labour, Chennai, who is a former employee of one of the factories of the enterprise – the process was thus not carried out by a body offering every guarantee of independence and objectivity and this fact had only been disclosed after the verification process; (ii) despite the complainant’s request to conduct the verification process outside the factory and the Commissioner of Labour’s designation of such a venue, the verification process was finally conducted in the factory after the AMRFWWU filed a writ petition to the Madras High Court to stay the Labour Commissioner’s order; (iii) a notice was displayed on the factory board informing that a direct inquiry in respect of trade union membership would take place but the workers were not otherwise apprised of the details of the personal verification process; (iv) during the process, each worker was shown a sheet with his or her photograph, employment details and a list of the seven unions operating in the factory printed in a very small font in a manner that could create confusion and were required to put a tick next to the union to which they belonged; (v) the sheets were printed and supplied by the management; (vi) the process lacked transparency: none of the complainant’s office bearers were allowed to be present during the verification or counting processes; even after objecting to the results and making a request to the Labour Commissioner, the union was not allowed to see the filled-in forms; and even though, on request of the complainant, the process was recorded on video, the footage contains no audio recording; and (vii) the process provided for in the Code of Discipline was not adhered to as unions which had not existed in 2009, as well as those operating in the factory for less than one year were allowed to participate in the verification exercise. The complainant informs that it filed a writ petition to the Madras High Court to challenge the proceedings of the Commissioner of Labour and that the case is currently pending. The complainant further alleges that there is still no national legislation relating to the recognition of trade unions and that as a result of this legislative lacuna, trade unions in many factories in the country that are truly independent and representative are struggling to secure their recognition. According to the complainant, a new law needs to be expeditiously enacted on the matter in accordance with the recommendations of the Committee and should provide for a secret ballot to determine an exclusive bargaining agent, particularly in cases of dual membership of workers.
- 26. The complainant also denounces continued victimization of its active members by the factory management, especially following the union members’ participation in a day-long fast to protest against the flawed verification exercise and manipulated results. These alleged incidents include: the initiation of disciplinary proceedings on false charges against R. Pitchandi, G. Venkatesan, G. Kannan, B. Pazhani, V. Dananjeriyan, A. Kailasam, S. Sivakumar, G. Thulasi and V. Dananjeriyan; arbitrary deduction of wages of C. Damodharan and K. Sundarajan; and the discontinuance of light work for S. Pazhani who had suffered a medical disability. The complainant also alleges that the factory management continues to deduct subscriptions from its members in favour of the AMRFWWU.
- 27. Finally, the complainant expresses the wish to be given the opportunity for an oral hearing by the Committee so that its representatives can directly explain the hardship and plight faced by the workers on account of the failure of the management to recognize the union.
- 28. The Government provides its observations in a communication dated 18 April 2017. As regards the complainant’s allegation that it has not been represented in the settlement between the factory management and the AMRFWWU, the Government reiterates information provided previously that before the signing of the long-term wage settlement, the conciliation officer had given ample opportunities to the complainant, as well as to all unions in the unit, to participate in the conciliation but the complainant chose to withdraw from the process. According to the Government, this demonstrates that the machinery has made all effort for frank and complete consultations during the conciliation process, which was conducted in a fair and proper manner.
- 29. The Government also reiterates that a precise procedure is in place in the Code of Discipline for determining the most representative union. As regards the recognition of the complainant union, the Government indicates that in accordance with the 2009 decision of the Madras High Court, a verification process was undertaken at the factory and since multiple memberships were found, personal verification was mandatory to determine the union with the largest membership. In reply to the complainant’s allegation that the verification process was seriously flawed, the Government provides the following information: (i) the entire verification process was conducted transparently by a committee of officers who followed the procedure of the Code of Discipline to the letter; (ii) before the verification process, a meeting was organized during which the process was explained in detail to the representatives of all six trade unions operating in the factory, as well as the factory management, and standard operating procedures were signed by all participants, including the complainant, and later exhibited on the factory’s noticeboard; (iii) all trade union representatives gave consent to conducting the verification process within the factory premises; (iv) the process enabled the workers to speak out freely and frankly, it was videotaped and documented, as had been agreed in the standard operating procedures, thus ensuring transparency; (v) the allegation that trade union names on the sheets were printed in a very small font is a baseless observation; and (vi) the factory provided the printed sheets as the muster roll and details of workers may only be furnished by the management but all workers were personally verified by a team of officers in the presence of the Commissioner of Labour and the police. The Government further indicates that the results of the verification process showed that there were 1,666 union members at the factory in 2015 out of which 826 workers belonged to the AMRFWWU, while the complainant had a total membership of 778 workers. After the announcement of the results, the complainant challenged the process and the case is currently pending before the Madras High Court. The Government also states that while no law on recognition of representative trade unions currently exists in the State of Tamil Nadu, the procedure provided for in the Code of Discipline is strictly observed.
- 30. Concerning the anti-union dismissals and false criminal charges previously denounced by the complainant, the Government affirms that all disciplinary actions taken against workers were based on acts of misconduct, such as violence, intimidation, assaults and disruption of industrial peace and indicates that it intervened in every such occasion to bring back normality and prevent damage to the industry and the workers. It also reiterates information provided previously on the independent inquiry committee appointed in 2008 to investigate these allegations and explains that it is possible that when the complainant intensified its union activity, its supporters tried to slow down the production or indulge in non-cooperative behaviour to show their protest against the management or assert the dominance of the union. With regard to the new allegations of victimization of workers, the Government provides the observations of the State Government and the factory, who indicate that the management has not victimized trade union leaders or conducted unfair labour practices and that the complainant’s allegations are thus baseless and unjustified. According to the information provided, workers do not fear management and have not complained of a malfunctioning check-off system and it is premature to raise a complaint before the Committee on this matter, since grievance and dispute resolution procedures set out in the Industrial Disputes Act, 1947 have not yet been used. The following concrete information was submitted:
- – R. Pichandi was charge sheeted on 8 April 2016 for misconduct, insubordination and idling at work. An inquiry was conducted between May and August 2016 and the management is awaiting the findings from the Inquiry Officer. The inquiry was prolonged for more than eight months at the instance of the worker and the allegation of victimization is therefore baseless. After conclusion of the inquiry, the worker may file an industrial dispute.
- – G. Venkatesen was charge sheeted on 14 January 2016 for major misconduct involving process violations. The inquiry has been completed and a second show cause notice has been issued to him in December 2016 proposing an award of dismissal. The worker apologized for his behaviour and the management is reconsidering the proposed punishment, which should thus not be termed as victimization.
- – G. Kannan was charge sheeted on 26 June 2016 for major misconduct of process violation. During the inquiry, he was given ample opportunity to prove his innocence but the Inquiry Officer found him guilty. The management is in the process of proposing appropriate punishment.
- – B. Palani was issued with show cause notice on 10 May 2016 for the act of misbehaviour with a government official who visited the plant for inspection. An inquiry took place and the worker was adjudged guilty and a second show cause notice has been issued to which the worker provided a written reply, which is under consideration.
- – V. Dhananjayan was issued with a show cause notice dated 19 April 2016 for having indulged in major misconduct whereby he removed the side wall spotting sticker with an intention of defrauding and misleading the company. The worker submitted his explanation and the management issued a stern warning letter and closed the matter.
- – A. Kailasam was issued with a show cause notice dated 18 April 2016 for not adhering to certain norms (dwell time) and short-circuiting the process which could harm the quality of the product. The worker submitted a written explanation which was examined and the management decided to let him off with a warning letter.
- – S. Sivakumar committed a serious lapse of process violation by not adding the appropriate chemical input to a specific mixing which prompted the management to issue a show cause notice dated 4 August 2016. The inquiry is still pending due to the lingering attitude of the worker.
- – G. Thulasi has no disciplinary action pending against him.
- – V. Dhananjayan has been issued with a show cause notice dated 9 August 2016 for tyre scrap due to split fabric. He provided a reply and the inquiry is in process.
- – C. Damodharan and K. Sundarrajan have not been subjected to the alleged arbitrary deduction of wages.
- – Since workers are expected to perform in various job allocations as decided by their supervisors, the question of withdrawing a light job from S. Pazhani does not arise.
- 31. With regard to the allegation of excessive use of police force in response to a peaceful protest organized in Chennai on 30 July 2009, the Government indicates that the police only took action once violence erupted and created a serious threat to law and order. The Government states that the complainant also admitted that the protest was violent by indicating that a number of workers and one child were injured. The Government further affirms that the police force used was not excessive, that it is satisfied with the timely action of the police in response to the chaos, violence and danger to the public and that there is thus no need for a judicial inquiry.
- 32. Finally, the Government indicates that the complainant had on many occasions instigated workers in several enterprises to indulge in illegal activities, to violate judicial orders and not to arrive at amicable settlement and instead deliberately take issues to the court. In the Government’s opinion, the complainant’s preference for litigation instead of conciliation aims at disturbing industrial peace, whereas several forums are available for the amicable settlement of labour issues.
- 33. The Committee takes due note of the detailed information provided by the Government and the complainant. With regard to the alleged continued non-recognition of the complainant by the employer, the Committee observes that the Special Leave Petition filed by the management and the AMRFWWU against the 2009 judgment of the Madras High Court that had directed the State Government and the Commissioner of Labour to conduct a verification procedure prescribed under the Code of Discipline for determination of the most representative union was withdrawn in December 2015; that the Commissioner of Labour conducted the verification exercise in March 2016 which concluded that, as of 2015, the AMRFWWU counted 826 members and the complainant 778 members; and that the complainant filed a writ petition to the Madras High Court challenging the proceedings and the case is currently pending. The Committee further observes that while according to the complainant, the procedure was seriously flawed in several aspects and led to manipulated results falsely establishing the largest membership of the AMRFWWU, the Government affirms that the entire verification process was conducted transparently by a committee of officers who followed the procedure of the Code of Discipline to the letter and that all trade unions operating in the factory gave their written consent to the modalities of the process. The Committee further notes that while the complainant denounces that there is no national legislation with respect to determination of a trade union’s representative status and that, as a result of this legislative lacuna, trade unions in many factories are struggling to secure their recognition, the Government states that even if there is currently no such law in the State of Tamil Nadu, the Code of Discipline provides for a procedure which is strictly observed. Taking note of the information provided, the Committee is bound to recall that, as of the beginning of its examination of this case, it has observed that the lack of a clear, objective and precise procedure for determining the most representative union has led to the lack of resolution of this matter, and regrets to observe once again that this matter continues to create conflict within the enterprise and is not conducive to harmonious labour relations. In view of the persistence of this issue and the concerns expressed by the complainant as to the consequences of the mentioned legislative lacuna on the functioning of trade unions, the Committee once again requests the Government to actively consider, in full and frank consultations with the social partners concerned, establishing objective rules for the designation of the most representative union for collective bargaining purposes, if necessary through the adoption of a legislative instrument, and to keep it informed in this regard.
- 34. Concerning the allegations of anti-union dismissals and cases of false criminal charges being brought against members and officials of the MRFUWU, the Committee observes the Government’s indication that any disciplinary actions taken against workers were based on acts of misconduct, such as violence, intimidation, assaults and disruption of industrial peace and that it intervened in every such occasion to bring back normality and prevent damage to the industry and the workers, including through the establishment of an independent inquiry committee in 2008. While taking note of this information, the Committee recalls that, during its last examination of the case, it noted with great concern that nearly all legal proceedings concerning dismissals were still pending many years after the termination of the plaintiffs’ employment (24 cases were pending before the Madras High Court and nine were pending before the Industrial Tribunal, Chennai) and observes that neither the Government nor the complainant provide any concrete information in this regard. The Committee wishes to underline that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective and recalls that the longer it takes for such a procedure to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly, people may have been transferred, etc., to a point where it becomes impossible to order adequate redress or to come back to the status quo ante [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 821]. In view of the above, the Committee urges the Government to take the necessary measures to ensure that, where this has not yet been done, the judicial proceedings that were pending during its last examination of the case [see 376th Report, paras 26, 31–32 and 40] are concluded without further delay, and to provide detailed information on their status, including their outcome and remedies and sanctions imposed. Concerning the cases of allegedly false criminal charges being brought against members and officials of the MRFUWU, the Committee notes that the Government does not provide any specific information in this regard and urges it once again to provide detailed and updated information on all such cases, including the case registered against 42 members of the complainant union in the wake of the events of 30 July 2009 in Chennai (CC No. 1223 of 2010) [see 376th Report, paras 27 and 40]. The Committee once again requests the Government to give due consideration to the adoption of legislative provisions that further the goal of preventing anti-union discrimination, including by providing for sufficiently dissuasive sanctions against such acts and to inform it of any action taken or envisaged in this regard.
- 35. The Committee further notes that the complainant denounces continued victimization of its active members, especially after the union’s protest against the allegedly flawed verification process with respect to trade union representativity, as well as deduction of subscriptions from its members in favour of the AMRFWWU. It observes that, according to the employer and the Government, these allegations are baseless as disciplinary action was taken solely for reasons of professional misconduct of the concerned workers and after an inquiry and that the complainant’s overall preference for litigation instead of amicable dispute resolution aims at disturbing industrial peace. In view of the contradictory views expressed, the Committee considers it useful to recall that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Digest, op. cit., para. 770] and to underline the importance it attaches to the development, maintenance and promotion of harmonious industrial relations by all parties. The Committee trusts that all pending inquiries will be speedily concluded and that any disciplinary action aimed at victimizing trade union members and any arbitrary deduction of trade union subscription fees found will be rapidly remedied.
- 36. The Committee recalls that the complainant also denounced the use of excessive police force in response to a peaceful procession organized in Chennai on 30 July 2009, which requested the implementation of the recommendations of the Committee, and that this resulted in serious injuries to several workers and one child. The Committee notes that, in response to this allegation, the Government indicates that the police only took action once violence erupted during the procession and created a serious threat to law and order, that the force used was appropriate in response to the danger to the public and that there is thus no need for a judicial inquiry. While taking due note of the information provided, the Committee wishes to emphasize that trade union rights include the right to organize public demonstrations and recalls that in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [see Digest, op. cit., para. 49]. Observing that the Government and the complainant have opposing views as to the source of violence during the protest and regretting that more than eight years after the alleged incident this issue remains pending, the Committee trusts that the Government will take any necessary measures to ensure full respect for the abovementioned principle and the rapid undertaking of an independent inquiry in the future in the event of complaints of excessive intervention by the forces of order.
