Rapport intérimaire - Rapport No. 395, Juin 2021

1. 252. The Committee last examined this case (submitted in April 2014) at its October 2019 meeting, when it presented an interim report to the Governing Body [see 391st Report, paras 385–412, approved by the Governing Body at its 337th Session (October–November 2019)]. 
2. 253. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) provided additional information in a communication dated 18 May 2021.
3. 254. The Government sent its observations in a communication dated 31 January 2021.
4. 255. The Maldives has ratified 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. Previous examination of the case

1. 256. In its previous examination of the case in October 2019, the Committee made the following recommendations on the matters still pending [see 391st Report, para. 412]:
   • (a) The Committee deeply regrets that, despite the time that has elapsed since the presentation of the complaint in April 2014, the Government has still not replied to the complainants’ allegations even though it has been requested, on numerous occasions, to present its comments and observations on this case. The Committee once again strongly urges the Government to provide its observations on the complainants’ allegations without further delay and to be more cooperative in the future. The Committee once again reminds the Government of the possibility to avail itself of the technical assistance of the Office.
   • (b) The Committee firmly urges the Government once again to conduct an independent investigation as to the grounds for the arrest and detention of TEAM members on the three mentioned occasions (December 2008, April 2009 and May 2013) and, should it appear that they have been arrested because of their trade union activities, to hold those responsible to account and 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.
   • (c) The Committee expects the pending civil proceedings on the issue of dismissals of TEAM officials at Hotel A  to be concluded without delay and trusts, that in making its decision, the Supreme Court will take into consideration the principles of freedom of association and the Committee’s previous conclusions in this case. Considering the time that has elapsed since the Employment Tribunal first declared their dismissals illegal, the Committee expects the dismissed workers to be reinstated and paid back pay in the meantime and urges the Government to take steps to convene the management and the workers concerned with a view to resolving the long outstanding issues in this case. The Committee requests the Government to provide a copy of the Supreme Court decision once handed down and to keep it informed of any developments.
   • (d) The Committee urges the Government once again to conduct an independent inquiry into the allegations of excessive force used by the police against workers of Hotel A and ensure that adequate instructions are given so that such situations do not occur in the future. The Committee requests the Government to indicate all steps taken in this regard.
   • (e) The Committee requests the Government to take the necessary measures to ensure that the judicial proceedings relating to allegations of unfair dismissals at Hotels B  and C  are speedily concluded, so as to avoid unreasonable delays, and that the decisions are promptly and fully implemented by the parties concerned. The Committee trusts that, despite the time that has elapsed since these allegations were made, the courts will be able to order adequate remedies, with reinstatement being the preferred option, and, if reinstatement is not possible for objective and compelling reasons, the workers should be provided adequate compensation.
   • (f) The Committee requests the Government to take the necessary measures to ensure that the union at Hotel C can freely exercise its legitimate trade union activities, including the right to organize assemblies and display union banners, without any interference from the management and that the dismissed trade union officials have reasonable access to trade union members and premises, so as to be able to exercise their representative functions. The Committee further invites the Government to reach out to the parties and encourage them to engage in good faith collective bargaining as a means to create and maintain harmonious labour relations and prevent labour-related disputes. The Committee also requests the Government to give all appropriate instructions to ensure that the police are not used as an instrument of intimidation or surveillance of trade union members and to keep it informed of the action taken or envisaged in this regard.
   • (g) Concerning the case-specific allegations, 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 enterprises concerned, on the questions at issue.
   • (h) Finally, the Committee requests the Government to take the necessary legislative and enforcement measures, in consultation with the social partners concerned, to ensure that protection for trade union rights, in particular the right to freedom of assembly and protection against anti-union discrimination, are fully guaranteed both in law and in practice. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
   • (i) Observing that the Government has expressed a need for ILO technical assistance, the Committee trusts that it will be in a position to avail itself of such technical assistance in the near future.

B. The Government’s reply

1. 257. In its communication dated 31 January 2021, the Government states that the information it provides concerns allegations of disproportionate use of police force against striking workers, repeated arrest and detention of the Tourism Employees Association of Maldives (TEAM) leaders, their unfair dismissal, and non-enforcement of the court ruling ordering their reinstatement without loss of pay, during events that took place between November 2008 and May 2013. The Government points out that such information is based on factual inquiries conducted by the Ministry of Economic Development, in collaboration with the Attorney General’s Office.
2. 258. With respect to the allegations of disproportionate use of police force against striking workers, the Government indicates that, according to the information obtained by the Ministry on the incidents relating to the allegations, several employees of Hotel A working at the work site went on strike on 28 November 2008. The Government indicates that the employer called in the Maldives Police Service on 30 November 2008 to ensure the safety of the remaining employees and guests staying at the resort. There were reports of an initial confrontation between the striking workers and the police in the attempt by the police to remove some of the workers from the hotel’s premises, and the situation continued unresolved until the Government, through the President’s Office, intervened as a “mediator” between the disputing parties.
3. 259. The Government stresses that, according to information provided by the Maldives Police Service, the police personnel used force in accordance with the prevailing rules relating to the use of force, to the extent necessary and proportionate, and further notes that no arrests were made on that occasion. It points out that the Maldives Police Service is established as a civilian body mandated with, inter alia, law enforcement, with the duty to ensure security, protect property, and maintain law and order, and is subject to Law No: 5/2009 (Police Act). Actions of the officers of the Maldives Police Service are subject to oversight by several institutions, including the National Integrity Commission (the then Police Integrity Commission) established in 2015, the Human Rights Commission of the Maldives (HRCM), and parliamentary committees. Both the National Integrity Commission and HRCM are established as independent institutions by statute, and act as watchdog bodies for executive action including the decisions of the Maldives Police Service. According to the Government, HRCM investigated the incident in the presence of the employer’s legal counsel, striking workers and the Police in charge who were present at the scene. The investigation was conducted by HRCM based on complaints submitted to the Commission regarding injuries sustained by some of the striking workers during the confrontations that occurred between the striking workers and intervening police officers. HRCM’s findings indicated that the Maldives Police Service used force to control the disturbances that ensued in the confrontation between the police officers and the workers.
4. 260. The Government finally states that the Maldives Police Service has undertaken reforms in the area of use of force during protests and unrest. A strategic plan was formulated with a renewed mission to deliver trusted, human rights centres and a collaborative policing service. A new Police Bill has been passed by the Parliament on 6 December 2020, which seeks to improve police governance and accountability, with a shift towards community-oriented and democratic policing.
5. 261. With respect to the allegations of arbitrary arrests and detention of TEAM members and leaders, the Government indicates that: (i) no arrests were made during the strike and subsequent unrest of November 2008; (ii) in an incident separate from the strike of November 2008, the General Manager of Hotel A was brutally attacked by a group of employees of the Hotel on 13 April 2009; (iii) based upon an initial investigation by the Maldives Police Service, nine employees of the Hotel were arrested in connection with the assault for questioning and further investigation. These nine employees were members of TEAM who had also taken part in the strike in November and December 2008; (iv) on 23 November 2009, upon conclusion of their investigation, the Maldives Police Service referred the case concerning one of the arrested workers to the Prosecutor General’s Office for criminal prosecution. The Criminal Court’s verdict on the case was that there was not enough evidence to charge the worker as guilty; and (v) on 23 May 2013, three of the dismissed workers were arrested for attempting to trespass on private property (Hotel A). According to the employer, at the time of the arrest, a group of unidentified people accompanied the three dismissed workers. The police investigated the case and based on consultation with the Prosecutor General’s Office, the case was filed by the Maldives Police Service until further information could be obtained. There have been no developments in the said investigation so far. Although the complainants have sought to justify the unauthorized boarding of the resort’s ferry in the name of returning to work in accordance with the court order, the employer has stated that the employees had not yet been reinstated at that point in time, nor had the court authorized the employees for any forceful entry into the hotel premises.
6. 262. The Government stresses that in each of the incidents involving the arrest and detention of the persons in question, their constitutional rights were granted, including that of being brought before a judge of the Criminal Court to determine the validity of the arrest. According to the Government, the allegations involving the arrest and subsequent Criminal Court order to release eight arrestees on 13 April 2009 (one person being remanded in custody for nine days) and the arrest and detention for three days of the TEAM Vice President on 14 April 2009 should be considered in the context of the criminal justice rules. According to the Government, none of the persons arrested were ever detained in custody without a judicial warrant for such detention, in accordance with the provisions of the applicable law. It is therefore unable to ascertain the arrest of TEAM activists to be patently flawed and driven by an anti-union agenda.
7. 263. The Government further refers to major reforms to the criminal justice system undertaken during the past 15 years. A comprehensive and revised Penal Code was enacted as Law No: 9/2014 (Penal Code of the Maldives). Criminal procedure rules were revised and consolidated through the enactment of Law No: 12/2016 (Criminal Procedure Act), which lays down the rules pertaining to arrest, investigation, prosecution and the conduct of criminal trials, thus further ensuring that the constitutional rights are protected and preserved by all institutions of the State.
8. 264. Concerning the allegation of unfair dismissal of nine workers, including TEAM leaders, for organizing and participating in a strike, and non-enforcement of the court ruling ordering their reinstatement without loss of pay and payment of compensation, the Government indicates that, according to information obtained by the Ministry from the relevant authorities and information provided by the employer in relation to the allegations, the nine employees filed complaints to the Employment Tribunal, and all those cases were heard and a decision made by the Tribunal. The Government further indicates that of these nine claims: (i) five never reported to work since reinstatement, and there are no records to show further claims; and hence the employer has considered this as their rejection of the reinstatement and abandonment of their employment; (ii) three entered into private out-of-court dispute settlement agreements resolving the matter and withdrawing all complaints against the employer; and (iii) one case was settled by virtue of an appeal decision of the High Court.
9. 265. The Government indicates that it does not support or endorse “retaliatory dismissals” of employees in any form, as alleged in the complaint, and that neither the Government nor the Employment Tribunal were able to establish the complainants’ claims of anti-union discrimination in relation to the termination of employment. Furthermore, the Government declares that it is unable to establish that any of the cases as alleged in the complaint are pending enforcement of a judicial decision.

C. Additional information from the complainants

1. 266. In a communication dated 18 May 2021, the complainants provide new information in respect of the case and allege that no progress has been made in any of the cases concerning Hotel A, Hotel B and Hotel C respectively.
2. 267. In the case of Hotel A, the complainants indicate that the Supreme Court upheld the High Court decision of November 2016 according to which reinstatement does not require a return to the same workplace, as there would be no longer “trust” in the relationship between the employer and the workers. No further legal remedy is possible.
3. 268. In the case of Hotel B, the complainants indicate that, in its judgment of February 2021, the Supreme Court upheld the High Court decision regarding unfair dismissal, but overturned the original decision of the Employment Tribunal ordering reinstatement and compensation (the Supreme Court judgment was attached to the additional allegations). The Supreme Court agreed that, although there was no basis for redundancy of the terminated workers, the payment received by those workers in lieu of notice was sufficient compensation. The complainants further indicate that they will seek judicial review of the Supreme Court ruling in the case of Hotel B.
4. 269. In addition, the complainants allege that: (i) there has been no independent investigation into the use of police force and arrest of TEAM members (in December 2008; April 2009; May 2013) and that the threat of arrest in response to trade union activities continues to create a climate of fear in the resorts throughout the Maldives; (ii) there is still no legislation in the country guaranteeing the right to freedom of assembly and protection against anti-union discrimination, despite the ILO’s ongoing technical assistance and guidance in this matter, and (iii) in these circumstances, the status of trade union organizations such as TEAM is based on registration as an association under The Associations Act (2003), which means that there is no obligation for the employers to recognize these unions or to engage in collective bargaining.

The Committee’s recommendations

1. 283. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and the complainant, to provide information on the current employment status of the dismissed TEAM union leaders and members at Hotel A.
   • (b) As regards the issue of compensation in relation to the unjustified determinations at Hotel B, observing the complainants intention to seek judicial review of the Supreme Court ruling, the Committee urges the Government to institute a thorough review of the allegations related to the anti-union nature of these dismissals with a view to ensuring that, in the event that the allegations are proved, the employees concerned are paid adequate compensation to remedy all damages suffered and prevent any repetition of such acts in the future.
   • (c) The Committee requests the Government once again to take the necessary measures to ensure that the judicial proceedings relating to allegations of unfair dismissals at Hotel C are speedily concluded so as to avoid unreasonable delays, and that the decision is promptly and fully implemented by the parties concerned.
   • (d) The Committee requests the Government once again to take the necessary measures to ensure that the union at Hotel C can freely exercise its legitimate trade union activities, including the right to organize assemblies and display union banners, without any interference from the management and that the dismissed trade union officials have reasonable access to trade union members and premises so as to be able to exercise their representative functions. The Committee further invites the Government to reach out to the parties and encourage them to engage in good faith collective bargaining as a means to create and maintain harmonious labour relations and prevent labour-related disputes.
   • (e) Recalling that the legislative aspects of the case have been referred to the CEACR, the Committee trusts that will ensure the adoption of the necessary legislation to fully assure freedom of association and collective bargaining rights.
   • (f) Concerning the case-specific allegations, the Committee requests the Government once again to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.