Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 359, Marzo 2011

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

1. 67. 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 June 2009 meeting [see 354th Report, paras 120–136]. On that occasion, the Committee noted with deep concern new allegations of anti-union discrimination against the MRF United Workers’ Union (MRFUWU); requested that the Government provide its observations on a variety of matters, including previously reported incidents of anti-union discrimination and interference in the complainant union’s internal affairs, as well as the current status of pending criminal cases against union workers; expressed regret that the Government had not provided the observations that the Committee had previously requested; requested that the Government actively consider adoption of essential legislative provisions in furtherance of trade union rights; and once again called on the Government to take appropriate measures to obtain the employer’s recognition of the MRFUWU for collective bargaining purposes.
2. 68. In a communication dated 8 October 2009, the MRFUWU provides additional follow-up information in support of its original complaint. The complainant describes a writ petition it filed in 2008, by which it sought implementation of the recommendations of the Committee contained in its 348th Report in Case No. 2512, specifically the recommendation relating to the recognition of the union by MRF Limited, the employer. The complainant also sought interim relief to prevent the employer from entering into a settlement with the MRF Arakonam Workers’ Welfare Union (MRFAWWU), a union allegedly sponsored by the employer, during the pendency of its writ. The Madras High Court granted and later extended interim relief in July of 2008, but in April 2009, the MRFAWWU filed a petition to vacate the interim order, which would clear the way for a settlement between the MRFAWWU and the employer. On 5 May 2009, the Madras High Court vacated the interim order. By 8 May 2009, the complainant had prepared all papers necessary to file an appeal challenging the vacation order, and had served the employer and the MRFAWWU with these papers. However, the complainant was not able to file the appeal on 8 May 2009 because a copy of the order issued by the Madras High Court on 5 May 2009 had not been issued to the parties, despite orders from the ruling judge of the Madras High Court to the contrary. The complainant alleges that, despite their knowledge that the complainant was in the process of appealing the vacation of the interim order, the employer and the MRFAWWU entered into a settlement on 9 May 2009. The complainant further alleges that, in order to force its employees to comply with the terms of this settlement, the employer’s management officials began threatening workers with dismissal unless they signed documents indicating their acceptance. The complainant also indicates that, in response to the conduct of the management, its members engaged in a spontaneous protest by staging a strike. In response to this strike, the employer and the MRFAWWU filed criminal petitions with the Madras High Court, claiming that the complainant union had illegally detained several workers inside the factory premises against their wills, and that the complainant union was obstructing the movement of men, materials, and vehicles to and from the factory.
3. 69. In order to break the complainant’s strike, the complainant alleges that, in the guise of acting in furtherance of a court order permitting the police to remove finished goods from the factory, and at the behest of the employer, the police attacked and injured members of the complainant union who were peacefully protesting outside the factory. Additionally, the complainant alleges that the employer resorted to a lockout of the factory from 17 May to 27 May 2009. Furthermore, the complainant alleges that the employer filed false criminal charges against members of the complainant union, claiming that they had broken bus windows and caused injuries to a co-worker. The complainant then filed its appeal with the Madras High Court against that court’s decision to lift the interim order, and filed a concurrent petition requesting that the employer and the MRFAWWU be prevented from giving effect to their settlement of 9 May 2009. On 8 September 2009, the Madras High Court ruled on both the appeal and the petition. The court held that the Industrial Disputes Act contemplates that workers have an independent and truly representative collective bargaining agent, that it is the right of the workers to decide which union should be their representative, and that once they make that decision by a procedure accepted by law, the management has no right to refuse to recognize that union. As regards the mode of determining the representative status of the unions operating in the factory, and in the absence of any relevant statutory provisions in the State of Tamil Nadu, the court held that the verification procedure prescribed under the Code of Discipline would be the appropriate method, and that secret ballot would not be appropriate. According to the complainant, the court rejected the ballot system previously mentioned by the Committee as inconsistent with statutes which had been brought to the court’s attention, and inferior to the method of verification mandated by the court. It then directed the complainant to submit an application to the Labour Commissioner within a period of two weeks from the date of pronouncement of the order presenting its claimed membership figures for the previous six months, a period stretching from 1 March to 31 August 2009. On receipt of this application, the Labour Commissioner would issue notice to the complainant and the MRFAWWU, calling upon them to submit their membership registers and all supporting documents within two weeks of receipt of the notice. The Labour Commissioner would thereafter decide which of the two unions was more representative of the employer’s workers, based on which union was able to establish evidence of a larger membership. As related to the complainant’s challenge to the settlement reached by the employer and the MRFAWWU on 9 May 2009, the court noted that the complainant could challenge the validity and legality of the settlement by raising an industrial dispute.
4. 70. The complainant alleges that the High Court ignored the following salient aspects of the case: (1) that the employer extended the “check off system” to the MRFAWWU but not the MRFUWU, putting the former in an unfairly advantageous position if the court’s verification procedure is adopted; (2) that the employer has been deducting subscription against the will of the workers, also putting the MRFAWWU in an unfairly advantageous position in the verification process; and (3) that the settlement reached by the employer and the MRFAWWU on 9 May 2009 will be immediately imposed on the workers, while the proceedings in the suggested industrial dispute challenging the settlement will take no less than two years, causing injury to the workers in the meantime and affording only a remote remedy. Nevertheless, on 23 September 2009, the complainant submitted an application to the Commissioner of Labour in accordance with the order of the High Court, which contained the complainant union’s membership figures for the previous six months, and which was without prejudice to the possibility of the complainant’s filing an appeal to the Supreme Court against the High Court’s order regarding the court’s preference against the secret ballot method. On 14 September 2009, members of the complainant union called off their strike and resumed work.
5. 71. The complainant asserts that the employer and the MRFAWWU then filed petitions before the High Court on 8 October 2009, seeking a stay of the operation of the court’s order for one month, until 7 November 2009, to enable them to file a special leave petition before the Supreme Court against the High Court’s order. According to the complainant, the MRFAWWU has claimed that the directions given by the High Court were not in line with the Code of Discipline, and that there would be chaos and confusion if the court’s orders were to be implemented. The MRFAWWU has also claimed that verification of its membership was unnecessary, as it was the majority union for the employer’s workers.
6. 72. By a communication dated 15 October 2010, the complainant organization submits additional information on the alleged acts of anti-union discrimination committed by the management against office bearers and members of the MRFUWU. In particular, the complainant refers to show cause notices that were issued by the management following a one-day strike on 26 May 2010 to protest against the practice of engaging contract workers in direct production. It further alleges that, 12 members of the complainant trade union were placed under suspension, including Mr S. Manoharan, its executive committee member, following a strike on 11 and 12 October 2010 to protest against the management’s practices of paying piece-rate wages, the management’s unilateral action of installing cameras, and the practice of engaging contract workers in direct production process.
7. 73. The complainant also alleges that, earlier, on 25 March 2010, at the behest of the management, a member of the management’s puppet union attacked a member of the complainant union with a knife in the canteen, after the latter had voiced his protest against the quality of food served in the canteen. While a complaint in this regard was lodged with the Arakkonam Taluk police station, the management issued charge memos to the person attacked and two other members of the MRFUWU. Disciplinary proceedings against them are in progress. While the management also issued a charge memo to the attacker and placed him under suspension, the suspension order was revoked after a week and he was allowed to resume duty in the factory as usual.
8. 74. The complainant reiterates that its members face great hardship by reason of failure of the management to recognize the union and to collectively bargain with it. It further states that, beyond workers of the MRF Limited, workers in various other industries and establishments in the state of Tamil Nadu face hardship on account of the lack of any central or state law on the subject of recognition of trade unions. It stresses that there is an urgent need for such a legislation to be passed in consultation with representative workers’ organizations.
9. 75. The complainant indicates that criminal charges lodged by the management in 2005 against its three activists (Manivannan, P.N. Ravinder and Subramani) accusing them of breaking the glass panes of the company’s bus were dropped on 19 May 2010 as groundless. The said workers had also been dismissed on the basis of the said false criminal complaints and the industrial disputes raised by them against their dismissals are pending before the Labour Court, Vellore. Furthermore, on 10 March 2010, S.I. Syed Ghouse, K. Raghupathy and G. Ghandrasekhar were acquitted by the Special Judicial Magistrate of the criminal complaints brought against them by the management of the factory in 2009.
10. 76. In a communication dated 27 October 2010, the Government reiterates the findings of the three-member committee established to inquire into the allegations of anti-union discrimination and employer’s interference in trade union affairs, which concluded that there have been no violations of trade union rights, but that the allegations related to the continuing trade union rivalry. The Government indicates that the committee, having completed its duty on 28 May 2008, was not entrusted with any new work.
11. 77. As concerns the nine cases of suspension, the Government indicates that the aggrieved parties have to raise proposer industrial dispute before the conciliation authority under section 2(k) of the Industrial Disputes Act, 1947. No such case has been filed. The Government also indicates that the three-member committee also looked into disciplinary matters and reported that it pursued the disciplinary cases relating to termination of Thiru G. Shankar, General Secretary, and Thiru Muralikrishnan, the Joint Secretary of the MRFUWU. The committee revealed that they were charged with misconduct and low production, despite repeated instructions, warning letters and memos. Since these charges were not proved, they were dismissed. The inquiry also revealed that memos were issued concerning other workers who deliberately were slowing down the production and instigating other workers to slow down the production.
12. 78. With regard to the court cases concerning dismissed workers, the Government indicates that 31 dismissal cases are still pending before the Labour Court, Vellore.
13. 79. With regard to the allegation of false criminal charges brought against members and office bearers of the complainant organization, the Government indicates that criminal charges are made by the police against anybody who indulges in criminal activities. With regard to the death of S. Suresh Kumar on 16 December 2008, referred to as suspicious by the complainant in its communication dated 4 February 2009, the Government indicates that, following an inquiry, the death was declared to be a suicide. According to the Government, this incident and consequential violence that was displayed by some workers have led to the filing of criminal cases, as normal life at Arakonam and work at the plant were disrupted. The Government refutes the union’s allegation that some outsiders entered the factory and indulged in violence.
14. 80. With regard to the alleged transfers of trade union members which had been referred by the Government for adjudication, the latter reiterates that the said transfer cases were referred for adjudication to the Industrial Tribunal and are still pending.
15. 81. With regard to the legislation and the Committee’s recommendation to consider adopting legislation aimed at facilitating trade union recognition, the Government reiterates that industrial relations in Tamil Nadu are governed by a well-drafted legislation, namely the Industrial Disputes Act, 1947, and the Trade Unions Act, 1926. There is no law on trade union recognition. The Government points out that the fundamental freedom of association rights include the right to establish an association subject to reasonable restrictions in the interest of sovereignty or integrity of India, public order and morality. The State has no authority to pass executive orders to amend eligibility criteria for contesting union election. Only legislature can amend the existing law. So far, no legislative changes have taken place in this regard, since it involves several processes. As to the proposal 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, the Government indicates that any proposed amendment has to be deliberated by members of the State Labour Advisory Board, be examined by the Government and placed before the Parliament. Only then can an amendment be carried out.
16. 82. With regard to the Committee’s request to take measures to obtain the employer’s recognition of the MRFUWU for collective bargaining purposes, the Government reiterates that it is not in a position to accord recognition to the complainant trade union as there is no legal obligation on the part of the management to confer recognition to the union. The Government indicates that the Commission of Labour has advised the union to approach the State Evaluation and Implementation Committee (SEIC), the authorized body to confirm the position of any union based in the strength of its membership. The union, however, instead of approaching the SEIC, chose to file a writ petition before the Honourable High Court of Madras (WP No. 17991/08) seeking recognition without going through the prescribed process before the SEIC. The court pronounced its judgement on 5 May 2009 vacating the stay granted on 28 July 2008 against the enterprise’s management restraining it from entering into any settlement relating to wages or any other issue with the MRFAWWU. The Court considered that there is no bar for the management to enter into wage settlement with the other union, namely the MRFAWWU. Pursuant to this decision, the enterprise’s management and the MRFAWWU signed a bipartite wage revision settlement on 9 May 2009. The complainant trade union filed a writ of appeal questioning the validity of the settlement. The court verdict is awaited. Nearly 922 out of 1,400 workers of the enterprise have consented to the settlement.
17. 83. The Government indicates that, following the settlement, members of the complainant trade union refused to leave the plant, stopped working and prevented other workers from entering into the factory. On 12 May 2009, the High Court appointed an advocate commissioner to visit and report on the situation. The advocate commissioner reported that he was not allowed to interview the workers and only four workers stated that they wanted a secret ballot to be conducted. On 17 May 2009, the management declared a lockout and the agitating workers were removed by the police. Following a meeting of the District Collector with all the stakeholders, the management lifted the lockout on 27 May 2009. While 378 workers, members of the complainant trade union, have not returned to work, no disciplinary action had been initiated by the management.
18. 84. The Government concludes by stating that trade union rights are well protected in Tamil Nadu. It requests the Committee to close this case which it considers to be one of an inter-union rivalry.
19. 85. The Committee notes with deep regret that over four years have passed since the complainant first filed allegations with the Committee in the case at hand, yet during this time the situation of trade union rights at MRF Limited does not appear to have improved while the Government, despite certain efforts, has failed to adequately address the legitimate concerns raised by the complainant’s communications.
20. 86. The Committee notes the information provided by the Government. It further notes with deep concern the new allegations provided by the complainant, which include assertions that the High Court has prematurely lifted the writ of petition it previously issued and extended; that the employer has entered into a settlement with the MRFAWWU (which the complainant alleges is a puppet union); that the employer has 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; and that the employer initiated a lockout and frivolously filed criminal charges against union members in response to the strike. Furthermore, the complainant alleges that the High Court has mandated an inherently unfair verification procedure to determine whether the complainant or the MRFAWWU is the more representative union, and that this verification procedure does not include a secret ballot process. While the Committee notes the information provided by the Government with regard to these events, the Committee requests the Government to provide its observations on the abovementioned allegations of threats and violence contained in communications dated 8 October 2009 and 15 October 2010. The Committee observes that these allegations, if they are proven true, would infringe upon the principles of freedom of association and collective bargaining, and reminds the Government that when a State decides to become a Member of the ILO, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 15].
21. 87. With regard to the cases of allegedly false criminal charges, the Committee regrets that the Government merely reiterates the information it had previously provided and generally states that criminal charges are made by the police against anybody who indulges in criminal activities. The Committee recalls from the complainant’s communication dated 4 February 2009 that the following charges appear to be still pending:
    • – Criminal case lodged in the Sholingur police station in February 2007 under instructions from the management of MRF Limited, by Mr Mahendran, a member of the management-sponsored MRFAWWU against three members of our union – P. Parthiban, P. Balaji, P. Amaresan and B.M. Baskaran, a member of our union and the Vice-President of the MRF Cycle Tyre Unit Employees Association, falsely alleging that they had intimidated and threatened the workers to obtain their signatures on certain papers and thus have committed the offence under section 506(2) of the Indian Penal Code.
    • – Criminal case lodged in the Arakkonam town police station in February 2007 against D. Christopher, Executive Committee member, and I. Raja, an active member of our union, falsely alleging that they had intimidated and threatened the workers to obtain their signatures on certain papers and thus have committed the offence under section 506(2) of the Indian Penal Code.
    • – Criminal case (Crime No. 441 of 2008) lodged in the Arakkonam Taluk police station on 9 July 2008 by the management of MRF Limited against 262 office bearers and members of the MRFUWU for the offences under sections 143, 341 and 188 of the Indian Penal Code, read with section 30(2) of the Police Act and section 7(l)(a) of the Criminal Law Amendment Act alleging that they had engaged in a road blockade on 9 July 2008.
    • – Criminal case (Crime No. 73712008) lodged on 17 December 2008 in the Arakkonam Taluk Police Station against 25 members of the MRFUWU for the commission of offences under sections 147, 148, 307, 336, 436 and 448 of the Indian Penal Code and section 3 of the Tamil Nadu Public Property (Prevention of Destruction) Act, 1992, alleging that they had destroyed the property of the company.
22. 88. Referring to its previous examination of this case, the Committee urges the Government to provide the following without further delay:
    • – 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 MRFUWU, including an explanation of the concrete facts that formed the basis of these charges;
    • – 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, particularly in light of the complainant’s most recent allegations.
23. 89. The Committee recalls that it had previously requested the Government to actively consider the adoption of legislative provisions in furtherance of trade union rights. While noting the Government’s position in this respect, 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 this matter and only fomented continuing conflict at MRF. The Committee therefore 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.