Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 380, Octubre 2016

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

1. 27. The Committee last examined this case, in which the complainant alleged refusal by the management of the M/s A M S Fashions Private Limited to negotiate with the Vastra Silai Udhyog Kamgar Union, police interference in an industrial action, anti-union dismissals and the lack of grievance mechanisms in the state of Uttar Pradesh, at its June 2015 meeting [see 375th Report, paras 330–353]. On that occasion, the Committee made the following recommendations [see 375th Report, para. 353]:
   • (a) The Committee requests the Government to take all necessary measures without delay to ensure that the functions of Labour Commissioner are not performed by the Development Commissioner in the NSEZ but by an independent person having the confidence of the parties or an impartial body. It requests the Government to keep it informed of the steps taken in this regard.
   • (b) The Committee requests the Government to ensure that the principle that complaints of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned is observed in the cases of the workers laid off or dismissed and, if it is confirmed that the imposition of the lay-offs and dismissals were linked with the legitimate trade union activities of the workers, to take measures to ensure that the workers concerned are appropriately compensated, including through reinstatement if this is still possible.
   • (c) Expressing its deep concern that over three years have lapsed since the lay-offs and retrenchments, the Committee requests the Government to endeavour to bring the parties together without delay, along the lines requested in December 2012, with a view to considering all elements raised and finding a solution in the current context that is satisfactory to all parties concerned.
   • (d) The Committee also requests the Government to take the necessary measures without delay to carry out an investigation into the allegations raised in the complaint of police interference in respect of industrial action and to inform the Committee of the outcome.
2. 28. In its communication dated 6 July 2015, the Government indicates with regard to recommendation (a), that the Development Officer is a public servant and senior Government employee who has been delegated the power of the Labour Enforcement Officer, in line with the Central Government Special Economic Zones (SEZ) Rules, 2006 and the Uttar Pradesh SEZ Policy, 2007, with a view to facilitating implementation and expedition of enforcement activities in SEZs. The Development Officer is assisted by the technical expert from the Labour Department of the concerned State Government. The Government also states that according to the Uttar Pradesh SEZ Policy, 2007 services of the officers of the Labour Department may be at the disposal of the Development Commissioner in order to facilitate a single window service in SEZs. Furthermore, the Government indicates that according to the State Government, the Development Commissioner in the Noida Special Economic Zone (NSEZ) efficiently performed the functions of the Labour Commissioner and 350 cases were settled during conciliation proceedings. However, the present case could not be solved despite several rounds of discussions and hearings and the matter was thus referred to the Tribunal Court, Meerut.
3. 29. As regards recommendation (b), the Government states that the Centre of Indian Trade Unions (CITU) was allowed by the Conciliation Officer, posted in the office of the Development Commissioner in the NSEZ, to present the complaints of anti-union discrimination on behalf of the workers but there were no instances of anti-union discrimination and the issue of lay-offs and compensation are currently being examined by the High Court, Allahabad. The Government also indicates that the Industrial Disputes Act, 1947, contains provisions to resolve disputes speedily, with fewer complications and with little or no cost and that the Central Government Industrial Tribunal and Labour Courts are set up for resolving disputes without cumbersome legal hurdles. Furthermore, a recent amendment of section 2A of the Industrial Disputes Act allows workers to directly approach the Labour Court or Tribunal for adjudication of disputes arising out of discharge, dismissal, retrenchment or termination from service. The amended Act also provides for the establishment of a Grievance Redressal Machinery (GRM) within industrial establishments of 20 or more workers with one stage appeal at the head of the establishment for resolution of disputes arising out of individual grievances. The Government indicates that with this amendment, workers will have one more alternative grievance redress mechanism for the resolution of disputes within the organization itself with minimum necessity for adjudication.
4. 30. Concerning recommendation (c), the Government states that since the dispute is under active consideration of the High Court, Allahabad, where it was listed on 13 October 2014 and 7 July 2015, the jurisdiction of the Labour Commissioner ceased to exist.
5. 31. With regard to recommendation (d), concerning the request to conduct an investigation into the allegations of police interference in respect of industrial action, the Government states that the police action was necessary to maintain law and order and that the police had no role in any conciliation proceedings.
6. 32. The Committee notes the Government’s indication that, in line with the Central Government SEZ Rules and the Uttar Pradesh SEZ Policy, the Development Commissioner is vested with powers of the Labour Commissioner in order to facilitate implementation and expedition of enforcement activities in SEZs and that, according to the Government of Utter Pradash, these functions have been efficiently performed by the Development Commissioner in the NSEZ where 350 cases were settled through conciliation. While taking due note of these observations, the Committee recalls its conclusions from an earlier case concerning India [Case No. 2228, Report No. 332, para. 748] regarding the incompatibility that may exist between the functions of Development Commissioner and Labour Commissioner when performed by the same person. The Committee notes, moreover, that the complainant alleges that this mechanism does not have the confidence of all parties concerned, especially when allegations of anti-union discrimination are directed against the NSEZ administration itself, as in this case. The Committee, therefore, requests the Government once again to take all necessary measures without delay to review this matter so as to ensure that the functions of Labour Commissioner are not performed by the Development Commissioner in the NSEZ, especially as regards conciliation and mediation efforts, and to ensure that an independent person having the confidence of the parties or an impartial body carries out these functions. It requests the Government to keep it informed of the steps taken in this regard.
7. 33. The Committee notes the Government’s indication that: (i) the CITU was allowed to present the complaints of anti-union discrimination on behalf of the workers but no discrimination was found; (ii) the allegations of lay-offs and compensation are currently before the High Court, Allahbad; (iii) the legislation contains provisions to resolve disputes speedily, with little or no cost; and (iv) the Central Government Industrial Tribunal and Labour Courts are set up to solve disputes without cumbersome legal hurdles. The Committee further notes with interest the Government’s statement that a recent amendment to the Industrial Disputes Act, 1947, allows workers to directly approach the Labour Court or Tribunal for adjudication of a dispute arising out of discharge, dismissal, retrenchment or termination from service and provides for the establishment of a GRM, as an additional mechanism for resolution of disputes arising from individual grievances within industrial establishments of more than 20 workers. While taking due note of these developments, the Committee notes with concern that more than four years have passed since the lay-offs and retrenchments and the complaints of anti-union discrimination are still pending before the courts. In this regard, the Committee wishes to recall that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Cases concerning anti union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 817 and 826]. The Committee requests the Government to take the necessary measures to ensure that the complaints of anti-union discrimination are examined without further delay in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned and, if it is confirmed that the dismissals and lay-offs were linked to legitimate trade union activities, to take measures to ensure that the workers concerned are appropriately compensated, including though reinstatement, if this is still possible. The Committee requests the Government to provide it with information on any developments in this regard.
8. 34. Bearing in mind the context of the case, especially the lengthy proceedings, the ongoing appeal process and the fact that the workers’ unit no longer exists, the Committee once again requests the Government to endeavour to bring the parties together without delay with a view to considering all elements raised, and finding a solution in the current context that is satisfactory to all parties concerned.
9. 35. Finally, concerning the Committee’s request to conduct an investigation into the allegations of police interference in an industrial action, the Committee observes that the Government simply indicates that the police had only aimed at maintaining law and order and was not involved in any conciliation proceedings. The Committee regrets that the Government did not provide any detailed information concerning the conducting of an independent investigation into this allegation or its outcome and requests it to ensure in the future that any such allegations are investigated promptly.