Rapport définitif - Rapport No. 24, 1956

Cas no 149 (Inde) - Date de la plainte: 15-JUIN -56 - Clos

A. A. The complainants' allegations

1. 149. In its complaint contained in two communications addressed directly to the I.L.O on 15 June and 3 August of 1956, the Calcutta Port Commissioners Workers' Union makes the following allegations.
   • Allegations relating to Non-Recognition of the Complaining Organisation
2. 150. It is alleged that the complaining organisation is the strongest single union of workers in the Port of Calcutta but that, in spite of this, the Port Administration has refused to recognise it, although certain other unions have been recognised and although the Administration at one stage promised to consider the question of recognition after members of the organisation had carried on a hunger strike. Claiming that it has a membership of over 5,000 out of a total work force of 24,000 regular employees plus 6,000 temporary workers, the complaining organisation argues that it should also have been accorded recognition in view of a note circulated in 1950 by the Ministry of Labour to guide other Ministries employing labour when considering applications for recognition by unions of their employees in which, according to the complainant, the rule is laid down that a union organising 15 per cent or more of the labour force concerned should be recognised. The complaining organisation, stating that it has as members more than 15 per cent of the workers in the port, considers that it should have been recognised, in accordance with this rule. It is alleged further that this non-recognition is contrary to the Constitution of India.
   • Allegation relating to the Refusal of the Calcutta Port Administration to Form a Single Trade Union
3. 151. The complaining organisation alleges that, as an alternative to its own recognition, it asked the Port Administration to form a single union of its workpeople in accordance with a vote of the majority, but that the Administration refused on the ground that it could not compel workmen to form one union.
   • Allegation relating to Pressure on Workers to Cause Them to Leave the Complaining Organisation
4. 152. It is alleged that the Calcutta Port Administration is trying to cause workers to leave the complaining organisation and join other unions against their will.
   • Allegation relating to Anti-Union Measures on the Part of the Calcutta Port Administration
5. 153. It is alleged that the Government has failed and neglected to compel the Calcutta Port Administration to stop anti-labour activities and curtailment of the democratic rights of the workmen.
   • ANALYSIS OF THE REPLY
6. 154. In its reply dated 6 September 1956 the Government makes the following observations on the complaint.
   • Allegations relating to Non-Recognition of the Complaining Organisation
7. 155. Commenting on the claim to recognition according to the rule laid down in a Ministerial Circular of 1950, the Government points out that a membership of not less than 15 per cent of the labour force concerned was merely one of several criteria to guide government departments when considering applications for recognition by unions of their employees. Nowhere is it stated in the Circular, a copy of which is annexed to the Government's reply, that such 15 per cent membership gives a specific right to recognition even though more representative unions exist. In any event, the Government implies that this argument is irrelevant because, employees of the Calcutta Port Administration not being government industrial employees, the circular does not apply to them.
8. 156. The Government gives statistics to refute both the claim that the complaining organisation has as members over 15 per cent, of the port workers in question and the claim that it is the strongest union of such workers. According to the Government, when the complaining organisation made representations to it on this matter, after the Port Administration refused to recognise it in September 1954 as more representative unions had already been recognised, the central industrial relations machinery took steps to verify its membership. The Government declares that, while the union had claimed a membership of 5,887, according to its statutory annual return for 1952-53 its membership was 2,229, and that the inquiry in March 1955, when the union produced its records, showed that the number of regularly contributing members was only 1,597. The Government adds that similar inquiry showed that the Calcutta Port Employees' Association and the National Union of Port Trust Employees, both recognised by the Port Administration, had respective memberships of 17,634 and 4,404, and expresses the view that the complaining organisation was not recognised because of its relatively smaller membership.
   • Allegation relating to the Refusal of the Calcutta Port Administration to Form a Single Trade Union
9. 157. The Government states that it is for the workers themselves and not for the Port Administration to take any initiative to form a single union of workers in the Port of Calcutta.
   • Allegation relating to Pressure on Workers to Cause Them to Leave the Complaining Organisation
10. 158. The Government states that this allegation is without foundation and that all that the Port Administration did was to circulate a notice in January 1955 drawing the attention of the workers to the demands made by the complaining organisation and to the action taken thereon. A copy of this notice, which the Government states cannot be construed as having been intended to cause workers to join any particular union, is annexed to the reply.
11. 159. The only direct reference to the complaining organisation in the note is a statement that the Regional Labour Commissioner had recently inquired into the respective strengths of the unions operating in the port and that, although invited to do so, the complaining organisation failed to produce its membership rolls and other records to satisfy the Commissioner as to its membership. The rest of the note deals with action taken on the implementation of a report of the Central Pay Commission and concludes by advising workers " to think carefully and not be misled into doing anything which might disrupt the working of the port ", as such action would not be tolerated. No reference is made to workers joining or not joining any union.
    • Allegation relating to Anti-Union Measures on the Part of the Calcutta Port Administration
12. 160. The Government makes no comment on this general allegation.

B. B. The Committee's conclusions

• Allegations relating to Non-Recognition of the Complaining Organisation
  161. 161 It is contended that the Calcutta Port Administration refuse to recognise the complaining organisation but that it is entitled to recognition for two reasons -firstly, that it has as members over 15 per cent of the workers in the port and so qualifies for recognition under the terms of an Indian Ministry of Labour Circular issued in 1950 and, secondly, that it is the strongest organisation among the workers in question and other workers' organisations have been recognised. By recognition, the complainant means the willingness of the employer to bargain collectively with the organisation.
  162. 162 With regard to the first contention, the Government states quite clearly that the Circular in question merely suggested the 15 per cent membership as' a guide and not as a binding rule when the Ministries which are employing labour have to consider applications for recognition by organisations of their industrial employees, but that in any event the Circular would be inapplicable in the present circumstances because employees of the Calcutta Port Administration are not government industrial employees. The Committee considers, therefore, that the criteria as to representativeness for the purposes of union recognition contained in this Ministerial Circular of 1950 are irrelevant to the matters at issue in the present case and that the only point to be considered in connection with the above allegations is the contention that the complaining organisation is refused recognition whereas other unions are recognised, although it is the strongest union among the workers concerned.
  163. 163 In this connection, the Committee notes the Government's statement that, while the complaining organisation claims to have as members over 5,000 of the estimated 30,000 workers in the Port of Calcutta, it made a similar claim in September 1954 when an inquiry was being made but neglected to produce its membership records until March 1955, when they showed a regularly paid-up membership of only 1,597, and that the organisation itself claimed only 2,229 members in its statutory return made in 1953. As against this, the Government gives the verified memberships of the two organisations of workers recognised, by the Calcutta Port Administration as 17,634 and 4,404 respectively and suggests that the only reason for non-recognition of the complaining organisation may be that it is too small. In view of the precise nature of this information, the Committee considers that the complaining organisation's claim to be the strongest organisation of the workers concerned has not been established.
  164. 164 With reference to the allegation that non-recognition of the complaining organisation is contrary to the Constitution of India, no reference is made to the actual provisions invoked. It is to be noted, however, that, while article 19 of the Indian Constitution of 26 January 1950 accords to the citizens the right to form associations or unions, it does not contain any provision as to the compulsory recognition of such unions by employers.
  165. 165 In Case No. 57 relating to British Guiana, where the employers in the sugar industry had already recognised five trade unions but would not recognise a sixth union on the grounds that adequate representation for the purpose of collective bargaining was afforded by the unions which they had recognised, the Committee, noting that the sixth union had been legally registered so that it was legally free to seek to conclude collective agreements but that the Government was not bound by any law to enforce collective bargaining by compulsory means, took the view that the complainant had not offered sufficient proof that trade union rights had been infringed. In Case No. 52 relating to the then Free Territory of Trieste, in which the essential facts were substantially similar, the Committee formulated a similar conclusion.
  166. 166 In the present case also, in which the complaining organisation does not allege that it has been denied the right to exist under the law of the land or show that the Government is bound by any law to force the employers to recognise it for the purpose of collective negotiation, the Committee considers that the complainant has not offered sufficient proof that trade union rights have been infringed, so far as these allegations are concerned, and recommends the Governing Body to decide that this part of the case does not call for further examination.
• Allegation relating to the Refusal of the Calcutta Port Administration to Form a Single Trade Union
  167. 167 It is alleged that the employers refused to form a single trade union of their workpeople on the basis of a vote of the majority of them. The Government states that it is for the workers themselves and not for the Port Administration to take suitable steps to form such a union.
  168. 168 The Committee considers that, while in such circumstances employers should not seek to prevent workers from merging into a single union if they so desire, not merely are they under no duty to initiate such a proceeding, but that if they should try to do so they might well lay themselves open to a charge of committing an act designed to promote the establishment of a workers' organisation under the domination of employers or to support a workers' organisation with the object of placing it under the control of employers, contrary to the principle embodied by the International Labour Conference, for the precise purpose of protecting organisations against acts of interference, in Article 2 (2) of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
  169. 169 Having regard to this principle and to the fact that it is not alleged that any obstacle was placed in the way of the workers concerned themselves forming a single trade union organisation, the Committee considers that no proof has been offered to show that trade union rights have been infringed in this connection and, therefore, recommends the Governing Body to decide that this part of the case does not call for further examination.
• Allegation relating to Pressure on Workers to Cause Them to Leave the Complaining Organisation
  170. 170 No evidence is adduced in support of the allegation that the Calcutta Port Administration has tried to cause workers to join unions other than the complaining organisation. It is the Government itself which, in the belief that this may have given rise to the allegation, has furnished the text of a notice issued by the Administration which points out that the complaining organisation had not availed itself of an opportunity to produce its membership records when the Regional Labour Commissioner was inquiring into the strengths of the unions representing workers in the Port of Calcutta, refers to action taken on a report relating to scales of pay and states that no action which might disrupt the working of the port would be tolerated, but makes no suggestion as to workers joining or not joining any particular union.
  171. 171 In these circumstances, the Committee considers that this allegation is too vague to permit of its being examined on its merits and therefore recommends the Governing Body to decide that this part of the case does not call for further examination.
• Allegation relating to Anti-Union Measures on the Part of the Calcutta Port Administration
  172. 172 This allegation states in general terms that the Government has failed or neglected to compel the Calcutta Port Administration to stop anti-labour activities and curtailment of democratic rights. The complainant does not indicate to which precise activities or rights this allegation refers. The Committee considers that this is merely a general statement which is too vague to permit of any examination of this aspect of the case on its merits and therefore recommends the Governing Body to decide that this allegation does not call for further examination.

The Committee's recommendations

1. 173. In all the circumstances, the Committee recommends the Governing Body to decide that the case as a whole does not call for further examination.