Informe provisional - Informe núm. 376, Octubre 2015

1. 729. The complaint is contained in a communication dated 8 April 2014 from the Tourism Employees Association of Maldives (TEAM).
2. 730. As the Government has not replied, the Committee has been obliged to adjourn its examination of this case on several occasions. At its June 2015 meeting [see the Committee’s 375th Report, para. 8], the Committee made an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the observations or information requested had not been received in due time. To date, the Government has not sent any information.
3. 731. The Republic of Maldives has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 732. In its communication dated 8 April 2014, TEAM indicates that between 28 November and 3 December 2008, its leaders engaged in a union action by organizing a strike with the participation of the employees of the luxury hotel, One & Only Reethi Rah Resort (hereinafter the Resort). The strikers demanded better working conditions and the application of the new Employment Act and protested against anti-union transfer of some Resort employees. Many of the striking workers were members of TEAM. On 1 December, the third day of the strike, 13 workers including TEAM president, vice-president and executive committee members were dismissed. Police forces were deployed to arrest activists on the island. They identified TEAM’s president and arbitrarily arrested him and 12 other employees. In the course of the arrest, the police resorted to excessive force, using truncheons and pepper spray to disperse employees. Police brutality sparked other protests in luxury hotels in the capital city of Male and other islands of the Republic of Maldives. The strike ended on the same day following the intervention of the president’s office and with the conclusion of an agreement between TEAM, the employer and the president’s office.
2. 733. The complainant further indicates that at 1.30 a.m. on 13 April 2009, one day after an alleged assault on the Resort general manager, the police took nine leaders of the November 2008 strike and TEAM off the island in a speed boat to the capital Male. Once there, the workers were arrested as the suspected authors of the assault. Findings of the judicial inquiry later cleared them of all suspicion. The criminal court ordered the release of eight out of nine arrested TEAM leaders on the same day at 10.30 p.m. for lack of evidence. The last detained person was released nine days later, once it was established that there was no evidence linking him to the assault either.
3. 734. The complainant indicates that on 14 April 2009 at 3.30 p.m., the eight released TEAM leaders were informed at the moment they intended to take the ferry back to the Resort that they had been dismissed. At 5 p.m. TEAM vice-president was arrested a second time in relation to the assault against the general manager of the Resort. The criminal court allowed his detention for three days while the investigations on his potential role in the assault were under way. He was released at the end of these three days for lack of evidence. The police later charged other individuals in relation to the assault. The complainant affirms that these events prove the arrest of TEAM activists was patently flawed and driven by an anti-union agenda.
4. 735. The complainant organization indicates that, on 22 July 2009, the Employment Tribunal declared the dismissal of TEAM leaders illegal and ordered their reinstatement in their original positions without loss of pay. The employer repeatedly appealed against this judgment until it exhausted all appellate procedures up to the highest court, losing all of them. The order of reinstatement has now become final, but the employer still refuses to fully comply with it and all the efforts of the dismissed workers to obtain compliance have so far been in vain. At the beginning of September 2012, the employer informed the dismissed TEAM leaders that they would be reinstated with payment of back wages. However, on 30 September, they were informed that their jobs were transferred to Male from the Resort island and that their back wages would not be paid in full. The dismissed workers rejected this and requested full compliance of the employer with the judgment ordering reinstatement. On 25 November 2012, a civil court ordered the employer’s bank account to be frozen in case of failure to pay back wages in full. The court also confirmed that the workers must be reinstated in their original position and that their transfer was not acceptable. As a result of this judicial order the employer paid the back wages – up to that moment – in full, but still failed to reinstate the dismissed workers. The complainant further indicates that, on 27 January 2013, the dismissed workers requested the judge to take action against the employer for failure to comply with judicial orders. The judge called upon the board of directors to attend the next hearing. As they failed to appear, the court ordered that their passports be held in judicial custody.
5. 736. The complainant states that three of the dismissed TEAM leaders were arrested once again on 23 May 2013 when they were attempting to board the ferry to the Resort with the court order in hand, with the intention to return to work in accordance with the judgment. They were released five days later. Following this arrest and detention the court forbade the organization from engaging in any form of industrial action against the employer’s non compliance with the judgment ordering the reinstatement.
6. 737. The complainant organization affirms that the retaliatory dismissals and the biased reactions of the Government forces in arresting TEAM leaders create an environment hostile to union activism and discourage workers from exercising their collective rights. As there are no registered trade unions in the country and the formation of TEAM as a workers’ association is a first step in organizing the work force, it is critical that the TEAM leaders be reinstated as required by law.

B. The Committee’s conclusions

1. 738. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint in April 2014, the Government has not provided a reply to it even though it has been invited to do so on several occasions, including through an urgent appeal. The Committee urges the Government to be more cooperative in the future and reminds the Government of the possibility to avail itself of the technical assistance of the Office.
2. 739. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had expected to receive from the Government.
3. 740. The Committee once again reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violation of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them [see the Committee’s First Report, para. 31].
4. 741. The Committee notes that the complaint concerns events that took place between November 2008, when the employees of the Resort organized a strike in protest against anti-union transfer of some employees and to demand better working conditions, and May 2013. These events include disproportionate use of police force against striking workers, repeated arrest and detention of TEAM leaders, their dismissal, and non-enforcement of the court ruling ordering their reinstatement without loss of pay.
5. 742. With regard to the arrest and detention of union leaders, the Committee notes the complainant’s allegation that the TEAM president was first arrested along with 12 other workers on 1 December 2008, after being dismissed for organizing the strike at the Resort. According to the complainant, the strike ended with the intervention of the President’s Office and the conclusion of an agreement between TEAM, the employer, and the said office. The Committee further notes the allegation that a second set of arrests occurred on 13 April 2009, when nine leaders of the previously mentioned strike and the union were arrested in the wake of an alleged assault on the Resort general manager. According to the complainant, the criminal court ordered the release of eight out of nine arrested workers on the same day. On 14 April, TEAM vice-president was once again arrested and subsequently detained for three days (with the authorization of the criminal court) pending investigations on his eventual links with the assault. One arrested worker remained in detention for nine days. Ultimately all were cleared of the suspicion of any link with the assault, and the police charged other individuals with this offence. The Committee notes the complainant’s affirmation that these events prove that the arrest of TEAM activists was patently flawed and driven by an anti-union agenda.
6. 743. The complainant further alleges that following the dismissal of eight TEAM leaders, and the employer’s refusal to comply with a judicial decision ordering their reinstatement without loss of pay, a third set of arrests occurred on 23 May 2013, when three of the dismissed TEAM leaders were arrested and detained for five days for attempting to board the ferry to the Resort with the intention of returning to work in accordance with the court ruling ordering the employer to reinstate them.
7. 744. The Committee recalls that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 72]. The Committee observes that in this case, trade union officials have been allegedly arrested and detained in relation to their trade union activities on at least two occasions: once in the context of a strike organized to defend the occupational interests of workers; and once when they were attempting to protest against the employer’s long-standing refusal to comply with a judicial decision that ordered the workers’ reinstatement after an illegal dismissal, and that the complainant alleges that the arrests in 2009 were driven by an anti-union agenda.
8. 745. With regard to the arrest and detention of trade unionists, the Committee further recalls that the arrest of trade unionists and leaders of employers’ organizations may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, op. cit., para. 67]. In view of the complainant’s affirmation that TEAM is one of the first workers’ organizations in the Republic of Maldives, where the State has not yet registered any trade union, the Committee observes with deep concern that these arrests and detentions are likely to have a severely negative impact on the general development of the trade union movement and the organization of workers in defence of their occupational interests. The Committee considers that the allegations of the complainant, should they be proved, are cause for great concern for the respect of freedom of association in the country. The Committee therefore urges the Government to conduct an independent investigation as to the grounds for the arrest and detention of TEAM members on the three abovementioned occasions, and should it appear that they have been arrested because of their trade union activities, to hold those responsible to account and to take the necessary measures to ensure that the competent authorities receive adequate instructions not to resort to arrest and detention of trade unionists for reasons connected to their union activities in the future. The Committee requests the Government to keep it informed of the measures taken in this regard.
9. 746. With regard to the dismissals, the Committee notes the complainant’s allegation that, on 14 April 2009, the employment of eight TEAM leaders was terminated due to their leadership roles in the union. The complainant further states that, on 22 July 2009, the Employment Tribunal declared the dismissals illegal and ordered the reinstatement of those dismissed without loss of pay and that this ruling became final after the employer exhausted all appellate procedures without success. The Committee recalls 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. 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 should have a 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’ organization shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 799].
10. 747. The Committee notes the complainant’s allegation that the court decision ordering the reinstatement of TEAM leaders has not been enforced despite the dismissed workers’ multiple attempts to obtain enforcement through the judicial system; and that even though the employer paid the back wages of the dismissed workers when a court ordered the freezing of its bank account in case of failure to pay in full those wages it still refused to reinstate the workers, despite a court order requiring that the passports of the board of directors be held in judicial custody for failure to attend a court hearing on the issue of reinstatement. The Committee observes that according to the allegations, more than six years have elapsed since the Employment Tribunal first declared the dismissals illegal and ordered the reinstatement of TEAM leaders. Recalling that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Digest, op. cit., para. 17], the Committee urges the Government to take all the necessary steps for the immediate enforcement of the sentence ordering the reinstatement of TEAM leaders and the payment of the remaining back wages that have accumulated since the last payment following the measure of enforcement adopted on 25 November 2012, and to keep it informed of the steps taken in this regard.
11. 748. The Committee notes the complainant’s allegation that in the course of the arrests of 1 December 2008 (that occurred during the strike) the police resorted to excessive force and used truncheons and pepper spray to disperse the workers. The Committee recalls in this regard that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control, and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of peace [see Digest, op. cit., para. 140]. The Committee therefore urges the Government to conduct an independent inquiry into the allegations of excessive force used by the police in this case, and ensure that adequate instructions are given so that such situations do not occur in the future. The Committee requests the Government to keep it informed of developments.
12. 749. The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprise concerned, on the questions at issue.