Informe provisional - Informe núm. 109, 1969

1. 88. The complaint is contained in a communication dated 15 December 1967 from the Lipton's Factory Workmen's Union of Calcutta. The complaint was transmitted to the Government in a letter dated 10 January 1968.
2. 89. The Government, in a communication dated 23 April 1968, stated that the complaint did not relate to specific violations of trade union rights, but contained general allegations concerning the payment of low wages to employees, non-implementation of labour laws and other matters. In these circumstances the Government requested the Committee to frame " precise issues " on which it wished the Government to send observations.
3. 90. At its meeting in May 1968 the Committee noted that, while some parts of the complaint go into details which are not directly related to trade union rights, the greater part of it consists of allegations of infringements of trade union rights. It accordingly requested the Government to be good enough to send its observations on the following allegations:
   • (a) the allegations that the Lipton's Factory is conniving with the authorities and does not comply with the provisions of the Code of Discipline in Industry in respect of the recognition of a trade union fulfilling the requirements of this Code;
   • (b) the allegations relating to the dismissal of Shri Abdul Aziz Khan, a leader of the complainant trade union, with the aim, according to the complaint, of disrupting the above-mentioned trade union;
   • (c) the allegations that in order to influence the result of particular elections the management of the undertaking gave advantages to rival trade unions thus discriminating against the complainant organisation;
   • (d) the allegations that, in connivance with the management, members of a rival trade union assaulted and attempted to murder leaders of the complainant organisation.
4. 91. The Government furnished its observations on the above allegations by a communication dated 25 September 1968.
5. 92. India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the Non-Recognition of the Complainant Union
  93. 93 The complainant union alleges that the employer refuses to recognise it and has taken certain measures against its members in order to crush it.
  94. 94 The complainants explain that their trade union was formed in 1964 and that in July of the same year the company signed an agreement for five years with two other trade unions without " the knowledge or consent of the majority of the workmen of the company ". When they learned of the existence of this agreement, 65 per cent of the workers in the undertaking made a joint representation to the Government, requesting that it be cancelled. The Government, according to the complainants, instead of taking proper action with regard to the complaint, became a party to this unfair practice by the company against the workers.
  95. 95 With regard to recognition of the complainant trade union by the undertaking, it is maintained that, in accordance with the Code of Discipline in Industry, when a trade union represents a minimum of 15 per cent of the workers and has completed one year's function from the date of its registration, the employer must recognise such a trade union. The Lipton's Factory Workmen's Union was registered by the Registrar of Trade Unions of West Bengal on 9 October 1964. At the end of October 1965 it applied to the management for official recognition. At that time its members exceeded 50 per cent of the undertaking's labour force, that is to say, more than the membership of the two other trade unions put together. Nevertheless, the management still refused to recognise the union, which consequently submitted a complaint to the Labour Directorate. The latter called a few conciliation meetings but without result. According to the complainants, the trade union has still not been recognised and the management of the undertaking has been trying to crush the union, relying on the help of certain government officers.
  96. 96 After winning three elections to different factory committees, it is alleged, the union renewed its claim for recognition, but the management again refused to recognise it, and the authorities responsible for dealing with this matter under the Code of Discipline in Industry failed to take action in respect of representations made by the union.
  97. 97 In its communication of 25 September 1968 the Government introduces its observations by stating that the recognition of a union is a management function. According to the Government, the Code of Discipline in Industry, referred to by the complainant union, is a model agreement which employers and trade unions may voluntarily follow. If either party does not observe it, the Government continues, there is no law by which it can be enforced either on the trade union or the employer.
  98. 98 The Government indicates, however, that the case of the complainant union for recognition under the Code of Discipline was duly taken up with the management, but that the management refused to recognise the union for three reasons. Firstly, it is stated, the management claimed that the union was a minority union, and this fact has been corroborated by the West Bengal Labour Commissioner. Secondly, the Government states that prior to the registration of the complainant union in October 1964 a five-year agreement was entered into by the management with two other unions, which were recognised by the management as bargaining agents on behalf of all the workers at the factory in question. Thirdly, according to the management, the complainant union does not observe the Code. Within twelve months of its registration it had brought forty cases against the management, all of which the union lost. The management also claimed, according to the Government, that the union was responsible for creating industrial unrest and its behaviour as a whole was not compatible with the objectives of the Code of Discipline.
  99. 99 The Government concludes by pointing out that the complainant union is free to represent individual grievances of its members, and whenever such complaints are received by the West Bengal Labour Directorate appropriate action is always taken. Finally, the Government rejects as baseless and malicious the allegation made by the complainant of partisanship by certain government officials.
  100. 100 The Committee recalls that, in previous cases, it has not considered the refusal by an employer to recognise or bargain with a particular union as an infringement of freedom of association. It was of the opinion on these occasions that a government, having given legal recognition to trade unions as competent to participate in the regulation of employment relations, is not under a duty to enforce collective bargaining by compulsory means.
  101. 101 Nevertheless, the Committee wishes to refer to the five-year agreement entered into with the other two unions by the management, which, according to the complainants, was made without the knowledge or consent of the majority of the workers of the company. Under this agreement the two other unions were recognised as exclusive bargaining agents for all the workers in the factory in question. In a previous case, where the Committee was examining an allegation relating to a system involving certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, it considered that one essential safeguard to be provided was the recognition of the right of an organisation other than the certificated organisation to demand a new election after a fixed period, often twelve months, has elapsed since the previous election. Although there is a basic difference between that allegation and the present one, in that the industrial relations system in the former case was based on the formal recognition by the competent minister of trade unions as exclusive bargaining agents, the Committee is of the opinion that the two sets of allegations are in some ways analogous, since the principle which the Committee considers is pertinent to both is that if there is a change in the relative strength of unions competing for the preferential right or power to represent workers exclusively for collective bargaining purposes, then it is desirable that there should be the possibility of a review of the factual bases on which that right or power was granted. In the absence of such a possibility, a majority of the workers concerned might be represented by a union which, for an unduly long period, could be prevented-either in fact or in law-from organising its administration and activities with a view to fully furthering and defending the interests of its members. The Committee has moreover noted that the principle of periodic review of the recognition of a union is implicit in paragraph 4 of Annex I of the Code of Discipline in Industry, which provides that where a union has been recognised there should be no change in its position for a period of two years.
  102. 102 The Committee has noted the statement in the complaint that a joint representation was submitted to the Government by 65 per cent of the workers in the undertaking, requesting the cancellation of the agreement in question. According to the complainant, the Government failed to take " appropriate action " on the representation. The Committee presumes that a sufficient ground for rejection of this representation would have been the principle set forth in the Code of Discipline in Industry that when a union has been recognised there should be no change in its position for a period of two years. The Government has not, however, furnished specific observations with regard to the five-year agreement in question, and it is not clear from the observations which have been supplied at what point of time the West Bengal Labour Commissioner corroborated that the complainant union was a minority union. If such a confirmation has been made since the end of the two-year period following the entry into force of the five-year agreement, that is, since July 1966, then it appears to the Committee that the complainant union would have no grounds for contending that the considerations set forth in the preceding paragraph have not been respected. On the other hand, the Committee is of the opinion, in view of these considerations, that if since July 1966 the complainant union has been a majority union-as it is claimed in the information supplied by the complainant on the successes of the union in certain elections of factory committees-then, notwithstanding the five-year agreement entered into in July 1964, the authorities should make appropriate representations to the employer in question concerning a review of the situation regarding the recognition of this trade union. In this connection the Committee has moreover noted in another case relating to India that a tripartite committee exists in West Bengal to consider disagreements concerning the application of the Code of Discipline, and that it can use its good offices to settle such differences.
  103. 103 In these circumstances the Committee recommends the Governing Body to request the Government:
       • (a) if the complainant union's claim to be a majority union appears plausible to the competent administrative authorities, to proceed to an objective verification of this claim; and
       • (b) if the complainant union is found to be a majority union, then, notwithstanding the five-year agreement entered into by the management with the other two unions, to make appropriate representations to the employer concerning a review of the situation regarding the recognition of this trade union.
  104. Allegations relating to the Dismissal of Shri Abdul Aziz Khan, a Leader of the Complainant Union
  104. 104 The complainants allege that, with a view to disrupting the union, the management dismissed Shri Abdul Aziz Khan, a union militant and office holder, alleging that he had described a " clerk-cum-supervisor " as being a member of a left-wing trade union, and also on the ground of an anonymous accusation according to which he had committed a breach of discipline outside the factory.
  105. 105 In its communication of 25 September 1968 the Government states that, according to the management, the person in question was dismissed purely on grounds of indiscipline and insolent behaviour. The case was, however, referred to the West Bengal Labour Directorate in August 1966, and the Directorate submitted its report in May 1967. Since the case could not be settled through conciliation, the Government continues, it was referred by the West Bengal Government for adjudication in June 1967, and the matter is at present sub judice. The Government states that from these facts it is apparent that there has been no failure on its part in dealing with the matter, contrary to the allegations of the complainant union.
  106. 106 In these circumstances the Committee, noting that the question of the dismissal of Shri Abdul Aziz Khan is at present sub judice, recommends the Governing Body to request the Government to be good enough to inform it in due course of the outcome of the adjudication proceedings in question.
• Allegations relating to Interference by the Management in the Election of a Factory Committee
  107. 107 The complainants allege that at the election of the Canteen Committee the management tried to defeat their union by changing the list of voters to include the clerical staff. According to the complainants, this act was reported to the authorities who, however, paid no heed whatsoever. Furthermore, a number of members of the other two trade unions were allowed to make election preparations during working hours, whereas the members of the complainant trade union were not allowed even to speak to those working beside them. In spite of this, it was the latter trade union which gained the majority in this election.
  108. 108 The Government states in its observations that the West Bengal Labour Directorate received no complaint against the management from the union in respect of these elections. In addition, the Government refers to its previous comments (see paragraph 97 above) that questions such as these are matters for the management and that there is no law obliging the management to comply with the model agreement-the Code of Discipline in Industry which deals with the subject of labour-management relations.
  109. 109 The Committee notes that there is a conflict between the facts alleged by the complainant and the information contained in the Government's communication with regard to the making of a representation to the competent labour authority. However, despite the discriminatory measures which are alleged to have been taken against the complainant union and which might have unduly restricted the effective exercise of trade union rights, the Committee notes that these acts did not have the result which, according to the complainants, was intended, that is, of preventing the complainant union from winning the election of the Canteen Committee. In these circumstances, considering that no purpose would be served by continuing its examination of this matter, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to Assaults on Two Leaders of the Complainant Union
  110. 110 The complainants allege that, with a view to breaking their union, assaults were committed against two prominent members of the union, and that the management connived at these acts with members of the CPI union.
  111. 111 They allege that, on several occasions in September 1967, Shri Arabinda Barua, the Assistant Secretary of the Union, was assaulted at the factory gate by certain persons belonging to the rival CPI union. On one occasion, it is claimed, there was an attempt to murder him. The Personnel Officer was duly informed of these assaults, but, it is alleged, he took no action until Shri Arabinda Barua was hospitalised as a result of the attempt on his life. Only then, the complainants say, was preliminary disciplinary action taken against his assailants. The police, it is stated, were forced to intervene on two occasions to put an end to the violence provoked by the members of the CPI union.
  112. 112 Reference is also made in the complaint to an alleged assault on Shri Arun Kr. Sengupta, a member of the Executive Committee of the union, at the factory gate by members of the CPI union. The management, it is claimed, took no action on the matter.
  113. 113 The union states that it has made formal requests to the competent government and police authorities and to the management for appropriate action to be taken to protect Shri Arabinda Barua and Shri Arun Kr. Sengupta and other members of the union who were threatened. According to the complainants, the Government has taken no action on the assaults on the two union officers in question.
  114. 114 The Government states, in its communication of 25 September 1968, that the alleged assault on Shri Arun Kr. Sengupta was at no time reported to the Labour Directorate. As for the alleged assault on Shri Arabinda Barua, the Government indicates that, according to the management, the assault took place outside the factory premises and after factory hours. " Even then ", the Government continues, " a departmental inquiry into the incident was conducted by the management as a result of which it was established that four workers belonging to another union had participated in the assault on Shri Arabinda Barua. Disciplinary action against these four workmen has already been taken by the management. The other union to which these four workers belong has raised an industrial dispute before the State Labour Directorate, seeking relief against management action. This matter is still under consideration. "
  115. 115 In conclusion, the Government states: " It would thus be seen that the union's allegation that the Government and the management of the company connived in not taking any action against the miscreants who were responsible for assaulting Shri Arabinda Barua is not correct. In any case the alleged acts constitute criminal acts and it is open to the aggrieved persons to seek redress in courts through the ordinary criminal law of the land. If certain members of one trade union assault members of another trade union, that does not constitute infringement of the rights of trade unions by the Government or even by the employer. "
  116. 116 It appears to the Committee that the questions involved in these allegations relate to violence as a result of inter-union rivalry. Such acts might constitute an attempt to impede the free exercise of trade union rights. If this were the case and if the acts in question were sufficiently serious, it appears that the intervention of the authorities, in particular the police, would be called for in order to provide adequate protection of these rights. The question of infringement of trade union rights by the Government would only arise to the extent that it may have acted improperly on the alleged assaults.
  117. 117 The Committee notes that according to the Government the alleged assault on Shri Arun Kr. Sengupta was at no time reported to the Labour Directorate and that certain disciplinary action was taken by the management against the assailants of Shri Arabinda Barua. No judicial procedure before the courts under the ordinary criminal law seems to have been instituted by the aggrieved persons. The Committee also notes that, as indicated by the complainants, the police intervened on two occasions to put an end to the violence provoked by members of the CPI union. In these circumstances the Committee recommends the Governing Body to decide, subject to the considerations expressed in the preceding paragraph, that these allegations do not call for further examination.