Informe provisional - Informe núm. 391, Octubre 2019

1. 385. The Committee last examined this case (submitted in April 2014) at its October 2018 meeting, when it presented an interim report to the Governing Body [see 387th Report, paras 523–531, approved by the Governing Body at its 334th Session (October–November 2018)].
2. 386. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) associated itself to the complaint and provided additional information in a communication dated 7 August 2019.
3. 387. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on several occasions since the presentation of the complaint. At its meeting in June 2019 [see 389th Report, para. 6], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1972), it could present a report on the substance of the case, even if the requested information or observations had not been received in due time. While noting the Government’s request dated 2 October 2019 for a few additional days to the deadline for submission of its observations while awaiting technical assistance from the ILO, the Committee notes that, to date, the Government has not sent any further information and has thus decided to process with the examinations of this case.
4. 388. The Republic of 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. 389. In its previous examination of the case in October 2018, the Committee made the following recommendations on the matters still pending [see 387th Report, para. 531]:
   • (a) The Committee deeply regrets that, despite the time that has elapsed since the presentation of the complaint in April 2014 and the holding of a meeting with a Government delegate in November 2017 in order to ensure greater cooperation with the Committee’s procedures, the Government has still not replied to the complainant’s allegations even though it has been requested several times to do so, including through several urgent appeals. The Committee strongly urges the Government to provide its observations on the complainant’s 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 once again urges the Government 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 urges the Government to take all the necessary steps for the immediate enforcement of the sentence ordering the reinstatement of TEAM leaders and the payment of the remaining back wages, and to keep it informed of the steps taken in this regard.
   • (d) The Committee urges the Government to conduct an independent inquiry into the allegations of excessive force used by the police in this case, and ensure that adequate instructions are given so that such situations do not occur in the future. The Committee requests the Government to keep it informed of developments.
   • (e) 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 enterprise concerned, on the questions at issue.

B. Additional information from the complainants

1. 390. In a communication dated 7 August 2019, the complainants provide additional information, alleging that the Government has neither investigated the grounds for detention of Tourism Employees Association of Maldives (TEAM) leaders in 2008, 2009 and 2013 nor taken any action to ensure enforcement of the 2009 final order by the Employment Tribunal, declaring the dismissals of TEAM leaders illegal and ordering reinstatement without loss of pay. In addition, the reinstatement order has been further contested by the employer in a series of court procedures, which continue to this day, as a result of which, the dismissed workers have not yet been reinstated in their positions. In 2014, TEAM initiated civil court proceedings to enforce the reinstatement order and the court ruled that since the order had not been properly implemented, the One & Only Reethi Rah Resort (hereinafter, Hotel A), should reinstate the workers to their positions in accordance with the ruling of the Employment Tribunal. However, the employer appealed the civil court ruling and in November 2016, the High Court decided that reinstatement of the victimized union leaders and members did not require reinstatement in the same workplace and that there was no need to enforce the specifics of the original and subsequent rulings since there was no definition of reinstatement in national legislation or case law. The High Court thus considered that employers could exercise considerable discretion in determining the meaning and modalities of reinstatement. TEAM appealed this decision to the Supreme Court and the appeal is currently pending. The complainants point out that the absence of appropriate legal and enforcement procedures in the country has allowed the enforcement order to be endlessly postponed and ten years after the alleged acts the concerned workers continue to be denied their right to freedom of association.
2. 391. In addition, TEAM members had been enjoined by court from engaging in any form of industrial action in support of the reinstatement (as was already denounced in the initial complaint) and worker protests on resort islands are in practice impossible to carry out as section 24(B)7 of the Freedom of Public Assembly Act declares all public gatherings on a tourist resort to be illegal without prior authorization from the police and national defence force. Indeed, according to the complainants, workers are effectively denied their right to freedom of assembly, a vital component of freedom of association, and this denial is enforced through police power, resulting in the island hotels and resorts being rights-free zones.
3. 392. In this respect, the IUF also denounces anti-union discrimination at two other hotel establishments. In particular, it alleges that at Conrad Maldives Rangali Island Resort (hereinafter, Hotel B), 22 TEAM members were unfairly dismissed in June 2011 following a peaceful work stoppage by some 350 workers who, for two years, had been unsuccessfully attempting to engage the management in a discussion over the distribution of the service charge, which makes up a crucial part of their pay. When the management gave assurance that it was prepared to discuss the issues with the union, the workers returned to work but the management’s response was retaliatory dismissal targeting TEAM members, some of whom had ten or more years of experience. The workers challenged the dismissals at the Employment Tribunal, which ruled that the dismissals were groundless and unfair and ordered reinstatement with back pay. The High Court overturned the initial decision but in February 2015, the Supreme Court overturned the High Court’s decision and ordered investigation of the entire case. In December 2017, the High Court confirmed the original decision of the Employment Tribunal, concluding that dismissals without prior notice were unfair and in violation of the Employment Act and considered that the workers should be reinstated with full compensation. In March 2018, the management appealed this decision to the Supreme Court but no hearing has yet been scheduled. The complainants allege that, yet again, despite a clear decision ordering reinstatement, more than seven years have passed without its implementation due to the lack of effective framework to ensure protection against unfair dismissal, including explicit protection for union officers, collective bargaining and the right of workers to take industrial action.
4. 393. The complainants further indicate that in 2011, TEAM began recruiting members at the Sheraton Maldives Full Moon Resorts & Spa (hereinafter, Hotel C). In 2013, union officers were elected at the resort and by 2014, TEAM represented a majority of the resort employees. However, the management responded negatively to requests for formal recognition, refused to meet with the union committee and in April 2014, initiated disciplinary proceedings against the union secretary, based on allegations that the union contested. A few days later, in a letter to the general manager, the union reiterated its demand for recognition and good faith negotiations to resolve the deteriorating social situation stemming from the management’s hostility towards the union. On the same day, union members gathered in the staff area to protest against the disciplinary proceedings but still did not receive a reply to the written request for a meeting with the management. In addition, the management also rejected the union’s written request for its members to assemble in celebration of May Day – a national public holiday. The complainants indicate that on 14 May 2014, off-duty union members went to the general manager’s office to request a meeting and when they found the office empty, they peacefully awaited his return. However, the police arrived, began questioning the union leaders and issued orders to clear the premises. The following day, the union president, the secretary and an executive member were issued disciplinary letters, accusing them of unlawful assembly and illegal display of union banners in the staff area in April, and were also issued termination letters in the presence of the police. Since then, a total of ten union leaders and members have been terminated (or, in the case of contract employees, their contracts were not renewed) and more than 100 members received the same disciplinary letter. According to the complainants, the selective dismissals and mass disciplinary proceedings were clearly designed to intimidate union members and prevent the union from functioning. Moreover, the management informed the staff that any violation of the law on assembly would be punished with instant termination, the police began regularly patrolling the staff area and dismissed union leaders barred from the island have no access to their members without breaching the law, a situation which violates freedom of association.
5. 394. The complainants inform that in August 2014, TEAM filed cases with the Employment Tribunal for unfair dismissal of seven union officers and members at Hotel C. In July 2015, the tribunal ruled that although the employer could not establish reasonable grounds for the dismissal of union officers Ahmed Shiyaz, Hussain Ali Didi and Moosa Mohamed under the terms of the Employment Act, they should not be reinstated but only compensated, as their participation in an illegal assembly constituted a form of “negligence” which contributed to their dismissal. In October 2015, TEAM appealed this ruling to the High Court, which decided in November 2017 that the three officers’ “negligence”, including participation in an unauthorized assembly, constituted sufficient grounds for dismissal and that the three should be neither reinstated nor compensated. In February 2018, TEAM appealed this decision to the Supreme Court, which accepted the appeal, but no hearings have yet taken place.
6. 395. With regard to the above allegations, the IUF and TEAM urgently call on the Committee to recall to the Government its responsibilities and take prompt measures to ensure the reinstatement with full back pay of all workers still desirous of returning to their employment.
7. 396. On a more general note, the complainants allege that there is no legal framework for ensuring respect for freedom of association and collective bargaining in the country and that the absence of clear jurisprudence permits contradictory legal rulings and arbitrary decisions. They further denounce a systematic failure on the part of the Government to implement effective protection of the rights set out in Conventions Nos 87 and 98, both in law and in practice, and consider that the Government should address the need for comprehensive legislative and enforcement measures as a priority in order to develop a robust system ensuring full legal protection for the rights set out in Conventions Nos 87 and 98.

C. The Committee’s conclusions

1. 397. 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, including through several urgent appeals [see 375th Report, para. 8; 380th Report, para. 8; 382nd Report, para. 8; 386th Report, para. 7 and 389th Report, para. 6], to present its comments and observations on this case. Observing that the Government has expressed its interest to avail itself of ILO technical assistance. The Committee trusts that the Government will be in a position to provide its observations on the complainants’ allegations without further delay.
2. 398. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 399. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report, 1952, para. 31].
4. 400. 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.
5. 401. The Committee takes due note of the updated information provided by the complainants, detailing further the challenges to the exercise of freedom of association in both law and practice. With regard to the grounds for the arrest and detention of TEAM members (recommendation (b)), the Committee notes that, according to the complainants, the Government has not taken any action to investigate these allegations. Regretting the apparent lack of progress on this matter, 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.
6. 402. Concerning the situation of the dismissed TEAM officials (recommendation (c)), the Committee notes the complainants’ allegation that the Government has not taken any action to ensure the enforcement of the 2009 reinstatement order and that, after prolonged refusal by the management to reinstate the workers and its contestation of the relevant judicial decisions, the trade union initiated civil proceedings in 2014 to enforce the original reinstatement order but these remain pending before the Supreme Court. The Committee cannot but regret that, despite an initial court decision ordering reinstatement and prolonged judicial proceedings attempting to enforce this decision, the dismissed TEAM officials have yet to be reinstated in their jobs more than ten years after their dismissal. The Committee recalls in this regard that 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. Justice delayed is justice denied [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1144 and 170]. In these circumstances, the Committee expects the pending civil proceedings 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.
7. 403. As to the allegations of excessive force used by the police in this case (recommendation (d)), the Committee recalls that these refer to the use of truncheons and pepper spray to disperse striking workers of Hotel A in December 2008 and observes that the Government has not provided any new information in this regard. Therefore, the Committee urges the Government once again to conduct an independent inquiry into these serious allegations 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.
8. 404. The Committee further observes from the additional information provided that the complainants denounce prolonged anti-union discrimination at Hotels B and C. In particular, the Committee notes that 22 TEAM members were allegedly unfairly dismissed at Hotel B due to participation in a peaceful work stoppage and that despite prolonged court proceedings, the dismissed workers have yet to be reinstated, with the High Court’s 2017 ruling on reinstatement currently pending appeal before the Supreme Court. It further notes the allegations made with reference to Hotel C concerning mass disciplinary proceedings affecting around 100 union members and targeted anti-union dismissals (or non-renewal of contracts) of ten TEAM members. While the High Court found the dismissals of three union officers to be justified, the case is also currently pending before the Supreme Court.
9. 405. The Committee notes the multiple examples provided by the complainants of alleged retaliation for union activity at all three hotel resorts and the more general concerns raised at the absence of a legal framework and enforcement mechanisms to protect the exercise of freedom of association. In this regard, the Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. Protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker. No one should be penalized for carrying out or attempting to carry out a legitimate strike [see Compilation, op. cit., paras 1072, 1075, 1087 and 953].
10. 406. In view of the above, 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.
11. 407. The Committee also observes from the additional information provided that the complainants denounce a number of other violations of the principles of freedom of association at Hotel C, including the management’s refusal to allow union members to assemble on May Day, accusations of unlawful assembly and display of union banners, the management’s refusal to recognize the union and engage in negotiations and a ban on access to the island and to trade union premises for the dismissed union members. Noting that these allegations, if proven true, could have harmful impacts on the exercise of legitimate trade union activities, the Committee wishes to recall that the right to organize public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights [see Compilation, op. cit., para. 212] and that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function [see Compilation, op. cit., para. 1591]. With regard to the question of collective bargaining, the Committee wishes to emphasize that employers should recognize for the purposes of collective bargaining organizations that are representative of workers in a particular industry [see Compilation, op. cit., para. 1356] and that, while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement [see Compilation, op. cit., para. 1333]. In these circumstances, 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.
12. 408. Further observing the allegations of police interrogation of trade unionists and surveillance of staff areas at Hotel C, the Committee recalls that the apprehension and systematic or arbitrary interrogation by the police of trade union leaders and unionists involves a danger of abuse and could constitute a serious attack on trade union rights [see Compilation, op. cit., para. 128]. The Committee therefore requests the Government to give all appropriate instructions to ensure that the police is 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.
13. 409. Concerning the above 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.
14. 410. Finally, observing with deep concern the complainants’ overarching allegations that the Government’s systematic failure to ensure effective protection of trade union rights both in law and in practice leads to a denial of the right to freedom of association to workers in the Republic of Maldives, including denial of the right to freedom of assembly, which is enforced by the police, and prolonged situations of anti-union discrimination, the Committee recalls that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Compilation, op. cit., para. 46] and that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Compilation, op. cit., para. 1140]. Furthermore, the Committee recalls that permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused [see Compilation, op. cit., para. 219] and participation in peaceful assemblies and demonstrations should not lead to anti-union discrimination, as was alleged on several occasions in this case. In view of the above, the Committee requests the Government to take the necessary legislative and enforcement measures, in consultation with the social partners concerned, to address these general allegations and 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.
15. 411. 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.