Informe provisional - Informe núm. 199, Marzo 1980

1. 260. The complaint of the Balmer Lawrie and Co. Shramik Union is contained in two letters dated 29 January and 5 March 1979, and the complaint of the National Union of Race Employees of India is contained in a letter dated 22 February 1979. The Government communicated its reply in a letter dated 13 December 1979.
2. 261. India has not ratified 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. Allegations of the complainants

1. 262. The Balmer Lawrie and Co. Shramik Union (BLSU) states that under the Code of Discipline in Industry, a set of principles introduced by the Government in 1958 to guide employers' and trade union organisations' relations, an employer must recognise a trade union in its particular industry if that union has been registered under the Indian Trade Unions Act, functions for a full year and protects 15 per cent of the total labour force of that particular industry. The BLSU states that it was formed on 7 March 1976 with 80 per cent of the total workmen of the grease factory of Balmer Lawrie and Co. Ltd., a public corporation responsible to the Ministry of Petroleum, Chemicals and Fertilizer. The union was registered on 13 March 1977. The BLSU goes on to state that on 30 May 1977 it -presented a charter of demands to the management for improvement of the service conditions of the workmen, but the management refused to act and did not acknowledge receipt of the demands. The union referred the matter to the Labour Directorate of the Government of West Bengal and conciliation proceedings were initiated in December of that year. According to the BLSU, the management refused to settle a single issue. Under section 12(4) of the Indian Industrial Disputes Act, a report by the Conciliation officer on the failure of conciliation should be made to the Government, but this was not done for over a year.
2. 263. The BLSU claims that action was delayed so that the management could make an agreement with another trade union, the Balmer Lawrie Employees' Association, which represents the non-industrial workmen and the clerical section of that enterprise, on 5 June 1978. The Ministry of Petroleum, Chemicals and Fertilizer approved the agreement at bipartite level. From an attachment supplied by the complainant dated 26 June 1978, it appears that the management was agreeable to conclude a tripartite agreement with it on the same terms and conditions, but would not accord it recognition. The BLSU states that the president of this other union was a member of Parliament from the then ruling party. According to the complainant, acceptance of a bipartite agreement with one union while the identical issues were pending before conciliation was an attempt by the management to break the BLSU.
3. 264. The BLSU goes on to state that on 1 April 1976 the management removed five senior workmen from service after holding an improper medical examination with an incompetent and unauthorised medical practitioner in defiance of the Employees' State lnsurance Act and Scheme which covered those workers. The complainant alleges that the workers were removed to create vacancies for recruitment of cadres belonging to the then ruling party for the purpose of weakening the union and introducing an anti-union group.
4. 265. The union disputed the dismissal of three of these workers before the First Industrial Tribunal of West Bengal. It provides a copy of the Tribunal's award dated 7 December 1978. The judge held that there was no justification for the management to have terminated the services of the three workmen, one of whom had died, and awarded that they be reinstated with full back wages. The complainant states that after the judge submitted his report to the West Bengal Labour Department, the State Government did not publish the award but kept it suppressed with a view to discredit the BLSU and to give the upper hand to the rival union.
5. 266. Moreover, according to the complainant, the management suspended one BLSU leader and one stalwart of the union with a view to crushing the union. It claims that senior officers of the management asked these two union members to contribute money to the Congress Election Fund in return for withdrawal of the suspension orders; when the workers refused to contribute money to any political party they were dismissed.
6. 267. The BLSU states that all the labour force of the grease factory have been on strike since 19 December 1978 and on a hunger strike since 15 January 1979, on a 48-hour rotation basis. They are claiming that the management officially recognise the union, grant a 25 per cent increase in salaries and finalisation of the charter of demands. The Labour Commissioner of West Bengal called a joint conference at his chambers on 24 January 1979 to discuss the issues, but the management did not turn up.
7. 268. Lastly, the complainant supplies a copy of its letter dated 2 February 1979 to the West Bengal Labour Commissioner. Referring to the strike, the union states that the management has threatened the workers with use of police or permanent closure of the factory. It also states that the management has offered the following agreement: the workers should call off the strike without delay and resume production; there will be no victimisation for the strike; the production bonus scheme will be revised; all permanent workmen will be paid an advance; the four surviving workmen who were dismissed on medical grounds will be reinstated with full back wages subject to the company's right to transfer them; the two other dismissed workmen shall give a letter of apology; the workmen will drop their claim for recognition of the union and will withdraw the charter of demands. The union writes that as its funds have been exhausted by the strike and the Tribunal case and as the families of striking workers are suffering, the workers will be forced to sign the management's agreement.
8. 269. The complaint of the National Union of Race Employees of India, contained in a letter dated 22 February 1979, concerns alleged violations by the employer race course establishment of the Shops and Establishments Act as regards payment of certain benefits, and dismissal and victimisation of several trade union officers. Moreover, the complainant states that the management has recognised a rival union of spurious background for collective bargaining purposes and has taken various measures, such as an interim injunction, to hamper the activity of itself, the union more representative of workers in the establishment.

B. The Government's reply

1. 270. In its letter of 13 December 1979, the Government replies to the allegation of non-recognition of the BLSU under the Coda of Discipline, by stating that the criteria for recognition of trade unions provide that where there are several unions in an industry or an establishment, the one with the largest membership should be recognised. Recognition of unions under the Code is purely voluntary and an employer cannot be legally forced to recognise a particular union. According to the management, there is already a recognised union in Balmer Lawrie and Co. Ltd., namely the Balmer Lawrie Employees' Association, which is the majority union. It has been the sole bargaining agent for the staff and labour of the company's various branches for the last 8 years, whereas the complainant union only appeared in 1976 and operates only in the grease factory with the support of approximately 13 employees out of a total strength of 82.
2. 271. Regarding the charter of demands, the Government states that when the long-term settlement with the recognised union expired on 31 December 1976 re-negotiations with that union were under way and a settlement was reached on 5 June 1978. According to the Government, the benefits of this long-term settlement have accrued to the members of the complainant union. As to the BLSU's complaint that no action was taken after the conciliation proceedings failed, the Government states that upon perusal of the failure of conciliation report, the Government of West Bengal found that most of the issues involved had already been settled with the recognised union. As the bipartite agreement executed with the recognised union appeared to be reasonable and fair and as the management were also agreeable to sign a tripartite agreement with the complainant union on the same terms and conditions, the State Government decided that no further government intervention in the matter was called for.
3. 272. Regarding the allegation of non-publication of the award dated 7 December 1978 of the First Industrial Tribunal concerning the removal from service of senior workmen, the Government reports that it was published in the Calcutta Gazette on 24 January 1979 as Labour Department Order No. 360-I.R. Moreover, of the five workmen dismissed on medical grounds, two accepted the terminal benefits. The cases o€ the remaining three sere referred to adjudication. During the pendency of the proceedings one workman died. The remaining two workmen have since been reinstated.
4. 273. As for the dismissal of two other workers, the Government states that they were charge-sheeted and suspended according to the service rules of the company following a disturbance in the factory on 16 and 17 June 1976. On the basis of an inquiry in which they were given an opportunity to express their views, they were dismissed from service. Both the management and the concerned workers filed application under the industrial Disputes Act before the First Industrial Tribunal. According to the management, the two dismissed workers were reinstated as a result of the settlement between the management and certain striking workmen on 7 February 1979.
5. 274. The Government states that its observations in respect of the complaint of the National Union of Race Employees of India will be sent as soon as possible as a report from the Government of West Bengal is still awaited.

C. Conclusions of the Committee

1. 275. The complaint of the Balmer Lawrie and Co. Shramik Union involves allegations of non-recognition of a union and its charter of demands, dismissal of sever union members and suppression of a trade union in favour of a rival union.
2. 276. Regarding the allegation that the management of Balmer Lawrie and Co. Ltd. has refused to recognise the Balmer Lawrie and Co. Shramik Union, the Committee has stated in previous cases that where a union had been legally registered so that it was legally free to conclude collective agreements but where the government was not bound by any law to enforce collective bargaining by compulsory means, it takes the view that the free exercise of trade union rights had not been infringed. However, in the past the Committee has emphasised the importance which it attaches to the principle that employers, including governmental authorities in the capacity of employers of wage earners, should recognise for collective bargaining purposes the organisations representative of the wage earners employed by them.
3. 277. In the present case, the information presented by the union as to its representativity does not correspond with the information provided by the Government. The Committee favours negotiation as a means of settling disputes of this kind, but it notes from the Government's reply that the matter was settled when the union signed the agreement offered by the management on 7 February 1979. This agreement put an end to the strike that had begun in the grease factory on 19 December 1978 and required the union to drop its claim for recognition. It appears from information supplied by both the complainant and the Government that the management was agreeable to include the union in the collective agreement which it executed with the recognised union on 5 June 1978, subject to the complainant union dropping its claim to recognition. According to the Government, the benefits of this agreement have accrued to the members of the complainant union. In view of these circumstances, the Committee is of the opinion that this aspect of the case does not call for further examination.
4. 278. As regards the allegation that seven union members were unfairly dismissed, according to information supplied by both the complainant and the Government, two workers accepted the terminal benefits granted upon dismissal on medical grounds, one has since died and the four others have been reinstated with full back wages. The union was able to bring the cases of three of the dismissed workers before the competent judicial body and obtained relief.
5. 279. The Committee would recall that in a number of cases, it has pointed out 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 dismissal, demotion, transfer or other prejudicial measures - and that 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 must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered 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' organisations should have the right to elect their representatives in full freedom. However, for the reasons set out above, it considers that this aspect of the case does not call for further examination.
6. 280. Regarding the complainant's allegation that the slowness in reporting the failure of conciliation proceedings, the decision not to initiate adjudication, the signing of an agreement with another union when the same issues were pending with the complainant, and the removal of union members to create vacancies for recruitment of anti-union elements all were aimed at suppressing the union, the Government indicated that the management acted in the normal way with the recognised union. As the complainant gives no evidence of these alleged anti-union measures, the Committee considers that no violation of freedom of association rights has been proven to have taken place.
7. 281. The Committee notes that the Government has not yet sent its observations on the allegations presented by the national Union of Race Employees of India and would request it to communicate them as soon as possible.