Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 400, Octobre 2022

1. 539. The Committee last examined this case (submitted in April 2014) at its June 2021 meeting, when it presented an interim report to the Governing Body [see 395th Report, paras 252–283 approved by the Governing Body at its 342nd Session]. 
2. 540. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) provided additional information in communications dated 18 August 2021 and 24 May 2022.
3. 541. The Government provided its observations in a communication dated 23 May 2022.
4. 542. 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. 543. At its June 2021 meeting, the Committee made the following recommendations on the matters still pending [see 395th Report, para. 283]:
   • (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 terminations 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 the Government 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.

B. Additional information from the complainants

1. 544. In its communications dated 18 August 2021 and 24 May 2022, the IUF alleges that no progress has been made in resolving any of the three cases at Hotels A, B and C and points to a lack of protection of trade union rights, both in law and in practice.
2. 545. In relation to Hotel A, the complainants reiterate that, in February 2021, the Supreme Court upheld the November 2016 High Court decision, according to which reinstatement of the nine victimized TEAM leaders and members did not require return to the same workplace. They indicate that the ruling was the final step in the legal process, that six union members made out-of-court settlements but that three other workers, including TEAM Secretary-General, are still unemployed and seek reinstatement. According to the complainants, the Government has not taken any measures to initiate a dialogue between the workers and the management to settle the dispute and reinstate the three remaining unionists.
3. 546. Concerning Hotel B, the complainants indicate that, in July 2021, TEAM submitted a request for a review of the February 2021 Supreme Court judgment, which found 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. In its request for judicial review, TEAM expressed concerns at the undue delay in the judicial process – the Supreme Court ruling was made ten years after the unionists’ dismissal – which effectively penalized the 22 union members seeking reinstatement and pointed out that this prolonged period was used as one of the reasons why reinstatement of the workers was not feasible in the view of the Supreme Court. Further addressing the Court’s reasoning that international protest actions over the unfair dismissals had undermined trust to the extent that reinstatement at the hotel was no longer feasible or desirable, TEAM claimed that the protests conducted were legitimate trade union activities with no bearing on the ability of the dismissed union members to return to work and that it was beyond the Supreme Court’s mandate to determine whether trust had been eroded to the extent that return to work was not viable. Finally, TEAM put forward that despite the Employment Law providing for the remedy of reinstatement, re-employment or compensation in case of unfair dismissal, the Supreme Court ruled that there was unfair dismissal without however ordering any of the measures foreseen by the law. In August 2021, the Supreme Court decided not to further review the case, finding no gross injustice in its February 2021 ruling. In this regard, the complainants emphasize that there is no other legal remedy possible and allege that the Government is not taking any measures to arrive at an out-of-court settlement.
4. 547. With regard to Hotel C, the complainants state that in November 2020, the Supreme Court upheld the decision of the High Court which considered the dismissals of three unionists justified, even though they were dismissed by reason of peaceful assembly. While no legal remedy is possible, the dismissed union leaders are looking for reparation. The complainants further allege that union activities were banned in the resort and that the Government has not taken any measures to ensure that workers enjoy freedom of association at the workplace, including the right to engage in peaceful union activities or collective bargaining.
5. 548. In relation to the above cases, the complainants allege that they have been ongoing for ten years, that there has still not been an independent investigation into police action and the arrest of TEAM members in December 2008, April 2009 and May 2013 and that workers and their representatives are frustrated by delays in judicial proceedings.
6. 549. The complainants also raise more general concerns in relation to the situation of freedom of association, alleging that there is increasing fear in hotel resorts throughout the country and that even though TEAM has been educating its members on the right to organize and bargain collectively as a fundamental right, the Government’s intention and measures mean that these rights are not accessible in practice. Furthermore, there has been no progress to ensure that protection of trade union rights, in particular the right to freedom of assembly and protection against anti-union discrimination, is fully guaranteed both in law and in practice, and the Government has taken no action to adopt the Industrial Relations Act. In the complainants’ view, the adoption of the Industrial Relations Act, on the basis of the draft presented in the ILO Technical Memorandum of June 2013, which was the result of a tripartite consultation process, would provide for the legislative measures necessary for the protection of trade union rights, in particular the right to freedom of assembly and protection against anti-union discrimination.

C. The Government’s observations

1. 550. In its communication dated 23 May 2022, the Government provides its observations on the situation at Hotels A, B and C, as well as on the legislative framework that, in its view, guarantees trade union rights.
2. 551. In respect of Hotel A, the Government informs that its communication from January 2021 (previously addressed by the Committee) already exhaustively dealt with the allegations made and reiterates that out of the nine dismissed workers, one was reinstated as per the decision of the Employment Tribunal, three entered into out-of-court settlement agreements and withdrew any complaints against the employer and five did not report to work after being reinstated, which the employer considered as a rejection of their reinstatement. The Government believes that there are thus no pending claims concerning the dismissed workers at Hotel A.
3. 552. In relation to Hotel B, the Government provides detailed information on the judicial proceedings concerning the 21 dismissed workers. It indicates that the Employment Tribunal found their dismissals unlawful and ordered reinstatement, as well as payment of salaries and allowances, and that the cases were then heard by the Higher Court, before being addressed by the Supreme Court. This court ruled that there was indeed no situation of redundancy at the Hotel but that the payment given by the employer in lieu of notice was just compensation and that reinstatement to previous positions was not possible due to a break of trust between the parties and the considerable time that has elapsed since the date of termination. With regard to the workers’ claim that their dismissal was based on participation in a strike, the Supreme Court observed that during the examination of the cases by the Employment Tribunal, the complainants submitted that they could not state that their dismissal was mainly due to their engagement in trade union activities, that the Employment Tribunal did not find sufficient evidence to support this claim and that it could therefore not be taken into account in deciding the case. According to the Government, the allegations of anti-union discrimination raised during the proceedings were thus unfounded. It adds, however, that in the proceedings before the High Court and the Supreme Court, the workers asked to uphold the remedy of additional compensation ordered by the Employment Tribunal and therefore have a right to claim such compensation, but have not yet requested it. In May 2022, the Supreme Court informed that it had refused the application for judicial review of its decision, whereby the complainants exhausted the available domestic judicial proceedings.
4. 553. Concerning Hotel C, the Government indicates that the Employment Tribunal considered that the dismissal of three workers was not justified but did not find reinstatement necessary due to the workers’ negligence and ordered compensation instead. On appeal, the High Court overturned the Employment Tribunal’s decision, considering the dismissals as lawful and finding that there was no ground to order reinstatement, a ruling confirmed by the Supreme Court. In a different case touching four other TEAM members, the Employment Tribunal decided that while substantive fairness of the dismissals was proven by the employer, the procedural fairness was not and therefore ordered compensation to the workers for unfair dismissal. On appeal, the High Court considered that procedural fairness was also followed in the dismissals and that the workers’ activities were not exercised in accordance with the Freedom of Peaceful Assembly Act, therefore finding the Employment Tribunal’s decision invalid. This decision was not appealed. According to the Government, the cases relating to Hotel C have thus been concluded by final decisions of the courts and other trade union rights, including the right to organize assemblies, are guaranteed by the existing legal framework.
5. 554. In relation to the general allegations concerning a lack of appropriate legislative framework to guarantee trade union rights, the Government informs that the Associations Act, formulated in consultation with a wide range of stakeholders and ratified in May 2022, provides a more comprehensive framework for the exercise of the right to freedom of association, in particular on registration, general rights and obligations, including the right to strike, accountability and dissolution. A comprehensive study was also conducted to determine whether the current draft of the Industrial Relations Bill addresses issues of protection of workers’ and employers’ rights, trade union formation and recognition, trade union rights, collective bargaining, dispute resolution mechanisms and tripartite labour dialogue forums. Since it is a policy of the current administration to hold public consultations on draft bills before they are passed by Parliament, the draft Industrial Relations Bill will be soon open for public consultation. The Government adds that a grievance mechanism has been in place since April 2011 for employers and workers to address grievances before engaging in a strike and this mechanism ensures that the right to strike is only subject to safety, security and the rights of others at the workplace.
6. 555. With regard to the alleged lack of an effective framework to ensure protection against unfair dismissals, the Government indicates that the Employment Act prohibits unlawful termination of employment without a reasonable cause and that the burden of proof is on the employer. The 2020 amendments to the Employment Act provide further guidelines on a number of legal issues, including dismissal for redundancy, and the 2021 General Regulation on Employment further details the protections granted in the Employment Act. In addition, the Employment Act establishes an independent Employment Tribunal empowered to receive complaints concerning violations of its provisions.
7. 556. As to the alleged lack of legislation guaranteeing the right to freedom of expression and assembly, the Government contends that both rights are guaranteed by the Constitution and the right to freedom of peaceful assembly is also ensured by the Freedom of Peaceful Assembly Act, 2013. However, as is the case in many other democratic countries, these rights cannot be exercised without limits.
8. 557. The Government concludes by emphasizing that, over the years, it has worked tirelessly to improve and establish a comprehensive legislative framework that guarantees workers’ rights in line with ratified Conventions. The Employment Tribunal is operational and has been active in dealing with and resolving complaints submitted to it. The Government does not interfere in the exercise of the Employment Tribunal or the courts. In this particular case, neither the Government nor the Employment Tribunal were able to establish the complainants’ claim of anti-union discrimination in relation to the termination of their employment. While the Government encourages workers to fully exercise their rights granted under the local laws and ratified Conventions, it is important to exhaust all local mechanisms when seeking redress and exercising their rights.

D. The Committee’s conclusions

1. 558. The Committee recalls that this case refers to events that took place at Hotel A between November 2008 and May 2013 and concerns allegations of 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. The case also refers to allegations of anti-union discrimination targeting TEAM members at two other hotel establishments – Hotels B and C.
2. 559. The Committee takes due note of the additional information provided by the complainants and the Government’s observations, which concern the developments in all three hotel establishments, as well as updated information on the general situation of freedom of association in the country.
3. 560. Concerning the situation of the dismissed TEAM officials in Hotel A (recommendation (a)), the Committee recalls that following an initial ruling of the Employment Tribunal ordering the reinstatement of nine dismissed workers, in February 2021, the Supreme Court upheld the High Court decision of November 2016, according to which reinstatement of the victimized union leaders and members did not require reinstatement in the same workplace and that employers could exercise considerable discretion in determining the meaning and modalities of reinstatement. The Committee takes due note of the information provided by the complainants and the Government on the current employment status of the concerned unionists but observes that it is partially contradictory. While the complainants allege that the Government has not taken any measures to initiate a dialogue between the workers and the management so as to settle the dispute concerning the three remaining unionists, including TEAM Secretary-General, who have not been reemployed and seek reinstatement, the Government asserts that all pending claims concerning Hotel A have been addressed – one worker was reinstated, three concluded out-of-court agreements and five were offered reinstatement but did not come to work, which was understood by the employer as having turned down the offer of reinstatement.
4. 561. Acknowledging the lack of details and clarity as to the circumstances of the workers’ return to work or the refusal to do so raised by the Government, the Committee cannot but observe that 13 years after an initial court decision ordered their reinstatement, some union leaders and members have not yet been reemployed and have no further legal remedy beyond the modalities that may be exercised by the employer. In these circumstances and considering that at least three workers, including TEAM Secretary-General, continue to seek reinstatement, the Committee urges the Government to actively engage with the parties and encourage dialogue between them with a view to finding an out-of-court settlement for those unionists who wish to be reinstated, as the parties were able to do for other dismissed workers. The Committee trusts that all parties will engage in this process in good faith and will make all reasonable effort to find an agreeable solution to this long-standing issue.
5. 562. With regard to the allegations of anti-union discrimination at Hotel B (recommendation (b)), the Committee recalls that 22 TEAM members had allegedly been unfairly dismissed because of their participation in a peaceful work stoppage and that despite prolonged court proceedings the dismissed workers had yet to be reinstated. Although the Supreme Court, in its February 2021 judgment, upheld the High Court decision regarding unfair dismissal, it overturned the original decision of the Employment Tribunal ordering reinstatement and compensation and considered that the payment received by those workers in lieu of notice was sufficient compensation. The Committee notes the complainants’ indication in this regard that TEAM submitted a request for a review of the ruling in July 2021. In its request, TEAM expressed concerns at the undue delay in the judicial process – the Supreme Court ruling was made ten years after the unionists’ dismissal – which effectively penalized the 22 union members seeking reinstatement and argued that, contrary to what the Supreme Court stated, legitimate trade union activities of conducting protests had no bearing on the ability of the dismissed union members to return to work. TEAM also put forward that although the Supreme Court ruled that there was unfair dismissal, it did not order any of the measures foreseen by the Employment Law to address unfair dismissal – reinstatement, re-employment or compensation. The Committee further notes the Government’s extensive observations on the judicial proceedings before the Employment Tribunal, the High Court and the Supreme Court and observes, in particular, the Government’s assertion that, according to the courts, no evidence was furnished during the proceedings to support the claim of anti-union discrimination raised by the workers in relation to their dismissal and that this could therefore not be taken into consideration when deciding the case. The Committee also notes that, in August 2021, the Supreme Court decided not to further review the case and that, according to the complainants, the Government is not taking any measures to arrive at an out-of-court settlement. The Government for its part contends that the dismissed workers have a right to claim additional compensation, as per the order of the Employment Tribunal, but that no such claim has yet been made.
6. 563. The Committee understands from the above that more than 11 years after their termination was found to be unjustified, the 22 TEAM union leaders have now exhausted all available judicial proceedings at the national level, have not obtained reinstatement and have not received any compensation except the original redundancy payment, but are, according to the Government, entitled to additional compensation for unfair dismissal, as per the order of the Employment Tribunal. Recalling in this regard that the compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1173], the Committee trusts that the concerned workers will be able to receive such compensation without delay and that the Government will take an active role in facilitating the process. The Committee requests the Government to keep it informed of any steps taken in this regard. Further observing the prolonged nature of the proceedings, which in the complainants’ view penalized the 22 union members seeking reinstatement, the Committee must recall that justice delayed is justice denied. Delay in the conclusion of proceedings giving access to remedies diminishes in itself the effectiveness of those remedies, since the situation complained of has often been changed irreversibly, to a point where it becomes impossible to order adequate redress or come back to the status quo ante [see Compilation, paras 170 and 1144]. In these circumstances, the Committee urges the Government to take the necessary measures to ensure that allegations of anti-union discrimination are examined in the framework of national procedures which should be prompt so that the necessary remedies can be really effective.
7. 564. With respect to Hotel C, the Committee recalls that the allegations concern mass disciplinary proceedings affecting around 100 union members and targeted anti-union dismissals (or non-renewal of contracts) of ten TEAM members (recommendation (c)). The Committee observes from the information provided by the complainants and the Government that, in November 2020, the Supreme Court upheld the decision of the High Court which considered the dismissals of three unionists as justified, thus overturning the initial decision of the Employment Tribunal. The Government also informs about an additional case, where the High Court also considered the dismissals of four other unionists as justified since they had not acted in accordance with the Act on Freedom of Peaceful Assembly. While taking due note of the above and of the Government’s indication that cases relating to Hotel C were concluded by final court decisions, the Committee observes that the Government does not provide details on the manner in which the alleged anti-union nature of the acts was given consideration in the Courts’ final determination of the cases. It wishes to emphasize in this regard that, according to the allegations, the dismissals occurred when the Hotel’s workers attempted to organize and were accompanied by mass disciplinary proceedings designed to intimidate union members and prevent the union from functioning [see 391st Report, October 2019, paras 393–394]. In these circumstances, noting that the dismissed union leaders continue to seek a remedy for their dismissal, the Committee urges the Government to bring the parties at Hotel C together with a view to finding an out-of-court solution for the concerned unionists and requests the Government to keep it informed of the steps taken in this regard.
8. 565. The Committee further recalls that the complainants also previously alleged a number of impediments to the exercise of trade union activities at Hotel C (recommendation (d)) and observes that the Government and the complainants have different opinions in this respect. While the Government contends that trade union rights, including the right to organize assemblies, are guaranteed by the existing legal framework, the complainants allege that union activities were banned in the resort and that the Government has not taken any measures to ensure that workers enjoy freedom of association at the workplace, including the right to engage in peaceful union activities or collective bargaining. In view of these concerns, the Committee urges 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 those dismissed trade union officials who continue to have representative functions within the union have reasonable access to trade union members and premises so as to be able to exercise their representative functions. To this effect, the Committee encourages the Government to bring the parties together to clarify and remove any possible obstacles that may prevent the union from freely exercising its legitimate trade union activities and to incite the parties to engage in good faith collective bargaining as a means to create and maintain harmonious labour relations and prevent labour-related disputes.
9. 566. The Committee further notes with concern the complainants’ more general allegations that there is increasing fear in hotel resorts throughout the country and frustration at the delays in judicial proceedings and that despite education of unionists, the right to organize and the right to bargain collectively are not accessible in practice as a result of the Government’s actions and attitude. The complainants also point out that the incidents of police action and arrests of unionists in December 2008, April 2009 and May 2013, which formed the initial complaint in the present case, have not yet been investigated. The Government, on the other hand, puts forward that it has been working tirelessly to improve and establish a comprehensive legislative framework that guarantees workers’ rights, that the Employment Tribunal is operational and active in dealing and resolving complaints submitted to it and that the Government encourages workers to fully exercise their rights granted under local laws and ratified international Conventions. In light of the conflicting information, the Committee must recall that a genuinely free and independent trade union movement can only develop where fundamental human rights are respected. The Government has the duty to defend a social climate where respect for the law reigns as the only way of guaranteeing respect for and protection of individuals. The ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Compilation, paras 71, 72 and 46]. The Committee also wishes to underline that it had previously addressed the allegations of police violence and arrests of unionists resulting from confrontations between the striking workers and the intervening police officers and recalled in this regard that the exercise of freedom of association is incompatible with violence or threats of any kind, whether they be against employers, workers or other actors of society [see 395th Report, paras 274–275]. In view of the above and given the persistent concerns raised by the complainants, the Committee urges the Government to step up its efforts and take all necessary measures to ensure that workers in hotel resorts can freely exercise their legitimate trade union activities, without fear or intimidation of any kind.
10. 567. Finally, the Committee notes that the complainants also point to the persistent lack of adequate legislation in the country to guarantee the right to freedom of association and assembly and protection against anti-union discrimination (recommendation (e)), alleging in particular that the Government has taken no action to adopt the Industrial Relations Act, despite the fact that a draft had been formulated as a result of a tripartite consultation process in June 2013. The Committee notes the detailed information provided by the Government, both on the existing legislative framework that it claims guarantees trade union rights, freedom of expression and freedom of assembly, as well as on the ongoing or planned legislative amendments. It notes, in particular, the adoption of the 2022 Associations Act, which the Government informs was formulated in consultation with a wide range of stakeholders and provides a more comprehensive framework for the exercise of the right to freedom of association. Taking due note of the above and recalling that the legislative aspect of this case has been previously referred to the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts), which addressed the issue in its latest examination of the application of Conventions Nos 87 and 98, the Committee expects the Government to ensure the adoption of further necessary legislation to fully assure freedom of association and collective bargaining rights. The Committee also invites the Government to submit the 2022 Associations Act to the Committee of Experts for its consideration.