Effect given to the recommendations of the committee and the Governing Body - Report No 354, June 2009

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

1. 120. The Committee last examined this case, which concerns alleged 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, at its November 2008 meeting [see 351st Report, paras 84–106]. On that occasion:
   • (a) The Committee welcomed the steps taken by the Tamil Nadu government to implement its recommendations, including the establishment of a committee, with the District Collector as its chairperson, one representative from the office of the Joint Commissioner of Labour and one representative from the office of the Joint Chief Inspector of Factories, to examine the alleged acts of anti-union discrimination and interference in trade union affairs at the Arakonam factory. However, the Committee noted with concern the new allegations of continuing anti-union discrimination and interference, which it expected would also be examined by the committee. The Committee further expected that if the committee concluded that these allegations were substantiated, sufficiently dissuasive sanctions would be imposed so as to ensure that the management refrains from any further such acts and that the complainant organization may carry out its activities freely. The Committee further requested the Government to submit a copy of the committee’s report.
   • (b) The Committee further requested the Government to keep it informed of the outcome of the court cases concerning the dismissed workers.
   • (c) The Committee noted the explanation provided by the Government with regard to the orders of suspension which, according to the Government, in nine cases were inflicted as punishment and requested the Government to ensure that an independent investigation into those cases was carried out without delay and, if it was found that the workers were suspended due to their legitimate trade union activities, to fully compensate the workers concerned for the damages suffered.
   • (d) With regard to the allegation of false criminal charges brought against members and office bearers of the complainant organization, the Committee requested the complainant and the Government to provide information on all pending charges against members and office bearers of the MRF United Workers’ Union.
   • (e) The Committee further requested the Government to keep it informed of the outcome of the case concerning the alleged transfers of trade union members, which had been referred by the Government for adjudication.
   • (f) The Committee once again requested the Government to provide information on any concrete legislative changes taken or envisaged in order to bring the legislation into full conformity with freedom of association principles.
   • (g) The Committee also once again requested the Government to take appropriate measures to obtain the employer’s recognition of the MRF United Workers’ Union for collective bargaining purposes and to keep it informed in this respect.
2. 121. The Committee also noted a communication from the complainant dated 1 October 2008, in which the complainant, MRF United Workers’ Union, alleged new acts of victimization and harassment of officials and members of the union. In particular, the allegations related to an incident on 9 July 2008 in which one of the members of the union, who earlier in the day had helped distribute pamphlets outside the factory gate that concerned a hunger strike organized by the complainant union to highlight its demand for implementation of the Committee’s recommendations, was assaulted and beaten at his work station within the factory, allegedly with the complicity of the management in the attack. The management placed the assaulted worker and five other union members under suspension, after they had requested that he be authorized to leave the factory in order to obtain medical treatment. The complainant further alleged in connection with the same incident that the Arakonam Police at the behest of MRF management had a false criminal complaint lodged against several members of the union, pursuant to which five members were arrested on 10 July 2008 and taken to jail.
3. 122. The complainant further confirmed that the inquiry by the three-member committee, which was established by the government of Tamil Nadu to examine allegations of anti-union discrimination, was carried out and completed. The inquiry involved an initial sitting on 5 April 2008, followed by a factory visit on 14 May 2008, and the committee submitted its report on the inquiry to the state government on 28 May 2008. The complainant, although it did not receive a copy of the report, understood that one of the committee’s conclusions was the following: “Management has not initiated disciplinary cases against the employees on baseless grounds. However, it may be the case that when the worker is belonging to the complainant union, punishment may be more severe”.
4. 123. The complainant further referred to the separate previous inquiry into the allegations it raised in connection with the present complaint, which was carried out by Mr Thiru T. Dharmaseelan, a Labour Officer in Vallore, between January and March of 2007 at the direction of the government of Tamil Nadu. A copy of the March 2007 report of that inquiry, which was not previously forwarded to the Committee, was attached to the complainant’s communication. The report of the 2007 inquiry contained the findings of the Labour Officer, which included the following:
   • – “It is evident from the documents produced by the complainant Union, that workers were frequently transferred, demoted, suspended, charge memos and warning notices were issued to the workers after joining the union. On the enquiry it is also noticed that most of the Office bearers either were dismissed or de-promoted, suspended, or transferred … Although the management stated that the transfers and punishments, etc., were due to various misconducts and administrative reasons, the fact that all these mass activities were taken after starting of the Union, i.e., December 2003. Hence the complaint that the management have indulged in anti-union activities cannot be summarily rejected” (para. 3); and
   • – “There is no provision for conducting secret ballot election by a neutral body for determining the representational status of the union in the factory as per the Trade Union Act. In the present case the available material evidences clearly shows that the management is projecting a minority union as a majority one. In the above circumstance, it is felt necessary to determine the representative status of the union in the factory in an appropriate manner” (para. 5(g)).
5. 124. The complainant also referred to a writ petition which the MRF United Workers’ Union filed in 2008 in the Madras High Court, seeking a court order to implement the Committee’s recommendations, and in particular, to compel recognition as a bargaining agent by management of MRF Limited. By order dated 28 July 2008 the High Court issued a two-week interim injunction restraining MRF management from entering into any settlement relating to wages or any other issue with the MRF Arakonam Workers’ Welfare Union. A copy of the order was attached to the complainant’s communication.
6. 125. In a recent and detailed communication dated 4 February 2009, which will be reproduced in the next examination of the case, the complainant alleges new acts of anti-union discrimination committed by the management against office bearers and members of the MRF United Workers’ Union and anti-union practices by the authorities.
7. 126. In its communication dated 30 January 2009, the Government indicates that, on the basis of the reply by the state government of Tamil Nadu, the three-member committee which had been established to examine the allegations of the MRF United Workers’ Union had carried out and completed its inquiry. The Government states that, in accordance with the Committee’s recommendations that it conduct an inquiry both into alleged acts of anti-union discrimination suffered by the officials and members of the MRF United Workers’ Union and into allegations of interference by the factory management in trade union internal affairs at the Arakonam factory, the two issues were considered by the committee. The Government states that it appears from the committee’s conclusions that there appears to be no substance to the allegations. The Government indicates that it was informed that the conclusions included the following:
   • – both the MRF United Workers’ Union and the MRF Arakonam Workers’ Welfare Union enjoy substantial support of the workers;
   • – management has not initiated disciplinary cases against the employees on baseless grounds; and
   • – the very fact that the workers came out in open support of one union or the other in front of top management of the MRF during the plant visit of the committee proves that the workers do not fear the management in the context of participation in trade union activities and have the right to choose their union.
8. 127. The Government states that it has been informed by the Tamil Nadu government that every aspect of the Committee’s report has been carefully examined. The Labour Commissioner has been asked to take necessary action on the report of the three-member committee and to monitor the situation at MRF to ensure industrial peace and the early settlement of disputes. All possible steps have been taken in accordance with legislation in force to effectively redress the grievances of the complainant union. The Government further indicates with regard to the additional information in the complainant’s communication dated 1 October 2008, that it has had the matters alleged therein examined by the government of Tamil Nadu.
9. 128. With regard to the recommendation concerning taking appropriate measures to obtain the employer’s recognition of the MRF United Workers’ Union for collective bargaining purposes, the state government has identified the rule and procedure to be followed, which the Government indicates involves the Code of Discipline that it previously referred to in its communication dated 28 April 2008. The complainant union filed a writ petition with the High Court asking for a declaration that it be declared the sole bargaining agent, pursuant to which the High Court issued an interim injunction restraining MRF management from entering into any settlement with the MRF Workers’ Welfare Union. The state government after detailed examination of the documents and inquiry has come to the conclusion that the genesis of the whole matter is inter-union rivalry and the various incidents are related to the granting of recognition. Both unions have every opportunity to prove their strength.
10. 129. With regard to the Committee’s request that the Government 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, as well as all allegations of interference by the factory management into trade union internal affairs, the Committee notes the Government’s indication that the three-member committee established for this purpose by the government of Tamil Nadu has carried out and completed its inquiry. The Committee notes the Government’s indication that it appears from the committee’s conclusions that there does not appear to be any substance to the allegations. The Committee regrets that the Government still has not provided a copy of the committee’s report, and it requests once again that it forward the report without delay, so as to enable it to examine these allegations in full knowledge of the facts.
11. 130. The Committee notes with deep concern the new allegations of anti-union discrimination by the management of the enterprise to which officers and members of the MRF United Workers’ Union have been subjected, and allegations of anti-union practices by the authorities. The Committee requests that the Government provide its observations on these matters. Noting the Government’s previous indications that the Labour Commissioner had a meeting with the enterprise management and advised it not to indulge in acts of anti-union discrimination, and that the Labour Commissioner was asked to monitor the situation at the factory to ensure industrial peace and the early settlement of disputes, the Committee requests the Government to provide information about what specific actions the Labour Commissioner is taking in this regard, and in particular, with regard to the complainant’s new allegations.
12. 131. As regards the Committee’s previous request that the Government keep it informed of the outcome of the 26 court cases concerning the dismissed workers, which the Government previously indicated were pending before the Labour Court for adjudication, the Government repeats its previous indication that the government of Tamil Nadu wrote to the High Court on 6 March 2008 requesting the speedy disposition of these cases. The Committee regrets not to have received the information requested and once again demands the Government to inform it of the status of the court cases concerning the dismissed workers.
13. 132. With regard to the orders of suspension which, according to the Government, in nine cases were inflicted as punishment, the Committee requests the Government to confirm whether these cases were encompassed by the inquiry of the three-member committee in April and May of 2008 and if so, to provide information on the outcome of that aspect of the inquiry.
14. 133. With regard to all pending cases of allegedly false criminal charges brought against members and office bearers of the complainant organization, the Committee regrets that the Government has not provided information in this regard and therefore repeats its request that the Government provide information on all pending charges against members and office bearers of the MRF United Workers’ Union and invites it to specify the concrete facts which were at the basis of these charges.
15. 134. With regard to the Committee’s previous request that the Government keep it informed of the outcome of the case concerning alleged transfers of trade union members because of their membership or union activities, the Committee notes that the Government repeats its indication that the state government referred the issue of transfers for adjudication, and that it also states that the Commissioner of Labour informed both parties of the actions taken by the Government and the existing legal positions. The Committee once again requests the Government to provide information about the status of the transfer cases and about the actions that have been taken by the state government in this regard, as well as the information provided to the parties by the Commissioner of Labour.
16. 135. The Committee recalls that it previously requested the Government to take necessary measures so as to bring the legislation in the country into conformity with freedom of association principles. In particular, it requested the Government to actively consider, in full and frank consultations with the social partners:
    • – adoption of the legislative provisions expressly sanctioning violation of trade union rights and providing for sufficiently dissuasive sanctions against acts of anti-union discrimination;
    • – amendment of 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; and
    • – laying down objective rules for the designation of the most representative union of collective bargaining purposes, when it is not clear by which union the workers wish to be represented.
    • The Committee notes that the Government has provided no new information in this regard, and that it otherwise simply repeats its reference to the procedure laid down under the Code of Discipline, under which the State Evaluation and Implementation Committee makes decisions of a recommendatory nature based on pleas for recognition by petitioner unions. The Committee once again requests the Government to provide information on any concrete envisaged legislative or regulatory changes pursuant to the previous request of the Committee. The Committee expects that the necessary measures will be taken so as to bring the legislation into full conformity with freedom of association principles.
17. 136. The Committee regrets that the Government has provided no new information about taking appropriate measures to obtain the employer’s recognition of the MRF United Workers’ Union for collective bargaining purposes. The Committee recalls the finding of the 2007 inquiry by the state labour officer, recorded in paragraph 5(g) of his March 2007 report, that “the available material evidence clearly shows that the management is projecting a minority union as a majority one. In the above circumstance, it is felt necessary to determine the representative status of the union in the factory in an appropriate manner”. The Committee repeats its request that the Government take appropriate measures to obtain the employer’s recognition of the MRF United Workers’ Union for collective bargaining purposes and it asks the Government to keep it informed in this regard. It further requests the Government to keep it informed about the status of the writ petition lodged with the High Court by the MRF United Workers’ Union seeking a declaration that it be declared the sole bargaining agent.