Rapport définitif - Rapport No. 28, 1958

A. A. The complainants' allegations

1. 9. The complaint is embodied in two communications from the Burma Trade Union Congress dated respectively 15 December 1955 and 3 February 1956.
2. 10. It is alleged that workers employed by the Vertennes Company, Rangoon, formed a trade union on 25 August 1955 and submitted various demands in connection with working conditions because the employers were not complying with protective labour legislation, but the employers refused to negotiate. It is claimed that the employers failed to attend meetings of a conciliation board convened by a conciliation officer for 13 September, 20 September, 27 September and 5 October 1955. After demonstrations by the workers and threats by them to file suit under the Trade Disputes (Amendment) Act, 1954, because of the employers' non-attendance, it is stated that a joint meeting was held on 25 October 1955 and that both sides signed an agreement providing for the appointment of a joint works committee within seven days which would consider outstanding demands. It is alleged that the employers failed to implement their side of the agreement. On 2 November 1955 the Vertennes Company was acquired by the Tin Aye Company, Rangoon. Further communications to the new company were not answered.
3. 11. As the employers would not discuss outstanding matters a two-hour token strike was called on 25 November 1955 and a three-hour strike on 26 November. It is alleged that the owner of the business assaulted a striker and then made false representations to the police which caused peaceful strikers to be arrested.
4. 12. It is stated that a one-day token strike was called as from 6 a.m. on 10 December 1955 and that the employers informed the strikers that any of them who failed to resume work by 10 a.m. could consider themselves discharged. The strike continued until noon, when the Labour Directorate served notices to attend a conciliation board on 13 December 1955. The workers, it is declared, tried to resume work at 1 p.m., but 19 of them were dismissed. It is alleged that on subsequent occasions the workers demonstrated peacefully but that the employers and their agents threatened to assault and shoot workers, committed arson and damage to property and falsely accused the workers of doing it and then laid false information before the police which resulted in peaceful and law-observing demonstrators being charged with causing a breach of the peace.
5. 13. It is alleged that the employers failed to attend the meeting of the conciliation board arranged for 13 December 1955, although summoned to attend, thus contravening section 27 of the Trade Disputes (Amendment) Act, 1954.
6. 14. It is also alleged that the dismissal of 19 of the strikers contravenes section 14 B of the above Act, which prohibits any discharges, retrenchments or lockouts while a dispute is under consideration and during the seven days following its consideration by a conciliation board.
7. 15. At its 14th Session (Geneva, May 1956), the Committee, not then having received the Government's observations, adjourned its examination of the case until its 15th Session.
   • ANALYSIS OF THE FIRST REPLY
8. 16. In its communication dated 18 September 1956 the Government of Burma stated that the dismissal of the workers was not illegal and did not constitute a lockout as defined in section 2 (e) of the Trade Disputes (Amendment) Act, 1954, and did not contravene section 14 B of the Act as alleged, because notice of dismissal was given by the employers prior to their receipt of the notice to attend a meeting of a conciliation board, and, also, that the employers were not at fault in failing to attend the meeting on 13 December 1955 because they had requested, in writing and on justifiable grounds, a postponement of the meeting.
9. 17. The Government stated that, further conciliation meetings having been held without any agreement being reached, the dispute had been referred for adjudication to the Court of Industrial Arbitration.
   • PREVIOUS DECISIONS OF THE COMMITTEE
10. 18. At its 15th Session (Geneva, November 1956), the Committee observed that all the allegations of infringements of trade union rights made in this case hinged on the contention that they were in violation of provisions of the Burma Trade Disputes (Amendment) Act, 1954, and that, although the Government was of the opinion that no contraventions of this legislation occurred, the whole dispute was pending, pursuant to that Act, before the Court of Industrial Arbitration. As it was of opinion that the eventual findings of the court were likely to provide it with information which might be of importance in assisting it to formulate its conclusions on the different issues raised, the Committee requested the Director-General to ask the Government of Burma to be good enough to inform it in due course as to the outcome of the proceedings pending before the Court of Industrial Arbitration and to furnish a copy of the judgment when it had been given, and adjourned its examination of the case until the result of these proceedings was known.
11. 19. The Committee further adjourned its examination of the case at its 16th, 17th and 18th Sessions (February, May and October 1957), as it was still awaiting information as to the outcome of the proceedings before the Court of Industrial Arbitration.
12. 20. The Court made its award on 20 November 1957. A copy of the award in Burmese was forwarded by the Government by a letter dated 14 December 1957 and a copy in English by a letter dated 7 February 1958.
    • ANALYSIS OF THE SECOND REPLY
13. 21. The award of the Court of Industrial Arbitration declares that when demands were presented to the employer in August 1955 certain meetings were arranged by the Government conciliation officer. Representatives of the Vertennes Company failed to attend the first three meetings arranged but, at a fourth meeting, agreement was made on certain issues relating to a works committee. The employer did not co-operate in forming this works committee and, in November 1955, the business was transferred to the Tin Aye Company. Various representations were made to the new employers by the union of its employees with reference to the question of the works committee and met with no response. Then the token strikes on 24 and 25 November 1955, referred to in the complaint, took place. The conciliation officer arranged meetings on 26 and 28 November 1955. The employer did not attend the second meeting. The workers subsequently stated that they had reached agreement with the employer, but no agreement was signed before the conciliation officer. At 6 a.m. on 10 December 1955 the workers went on strike. They were ordered by the employer to resume work by 10 a.m., on pain of dismissal. At noon the workers, being informed by the conciliation officer that a joint meeting would be held on 13 December, returned to work. They were informed by the employer that, as they had not resumed work by 10 a.m., all 19 of them were dismissed.
14. 22. On these facts the Court found that the management had evaded meeting or discussing the workers' demands, that the employer, and not the union, was generally at fault in not co-operating with the conciliation officer, and that every time there was strike action the employer was warned beforehand but made no attempt to reach an amicable settlement. The Court found that the dismissal of the strikers was not justified.
15. 23. On the other hand the Court found that the workers, who were casual employees working on a daily wage basis, had in the course of the dispute used abusive language and behaved in such a manner as to contribute to an increased straining of relations, and also that earlier, in the course of their employment, the workers had committed various faults (disregard of disciplinary rules, careless driving of the employer's vehicles, stealing petrol, etc.). In these circumstances, the view of the Court was that the workers should not be reinstated but that compensation equivalent to two months' wages should be awarded in respect of the wrongful dismissals and that arrears of wages must also be paid.

B. B. The Committee's conclusions

1. 24. The essence of this case is that certain workers presented to their employer demands with respect to the establishment of a works' committee. As the employer did not meet these demands and showed a reluctance to negotiate, the workers called a number of brief strikes. In reprisal, the employer dismissed them. The matter having been referred to arbitration, the Court found that the employer had been at fault in failing to co-operate in conciliation meetings and that the dismissal was wrongful. The Court awarded the equivalent of two months' wages as compensation to the workers, but refused to order their reinstatement because their personal conduct in the dispute and, earlier, in carrying out their work, had also been improper and had contributed to the bad relations with their employers.
2. 25. The Committee has taken the view in the past that in the case of a labour dispute, " the question as to whether one party adopts an amenable attitude or an uncompromising attitude towards the demands of the other party is a matter for negotiation between the parties within the law of the land". The Committee has adopted the same attitude towards the dismissal of employees. These issues are precisely those raised in the present case and the Committee considers, having regard to the fact that the matters in dispute in this case have become the subject of an award by an independent tribunal, after a procedure conducted with all the guarantees of due legal process, which has redressed the grievances of the workers who are the subject of the complaint to such financial extent as the tribunal considers just and proper, that it is not appropriate for the Committee to review the position further. The Committee also recalls that where compensation has been ordered in respect of matters alleged it has held that the question of the actual sufficiency of the monetary compensation paid is a matter for decision by the competent national tribunal and is not appropriate for consideration under the procedure for the examination of allegations of infringements of trade union rights.