Informe provisional - Informe núm. 372, Junio 2014

1. 474. The complaint is contained in a communication of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) dated 8 April 2013.
2. 475. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on three occasions. At its March 2014 meeting [see 371st 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, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 476. Pakistan 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. The complainant’s allegations

1. 477. In a communication dated 8 April 2013, the complainant organization IUF denounces new gross violations of trade union rights by the Government of Pakistan in connection with the anti-union actions by the management of the Pearl Continental Hotel Karachi. Although the Government has ratified Conventions Nos 87 and 98, there is a long history of Government failure with respect to the violations of fundamental rights by the management of the hotel. The Pearl Continental Karachi Hotel Employees Union is affiliated to the IUF through its membership in the Pakistan Hotel, Restaurant, Clubs, Tourism, Catering and Allied Workers’ Federation.
2. 478. The complainant recalls that, in June 2003, responding to a 2002 complaint brought by the IUF on behalf of the Pearl Continental Karachi Hotel Employees Union (Case No. 2169), the Committee had requested the Government to (among other measures) instruct the competent labour authorities to rapidly undertake an in-depth investigation of the anti-union dismissals at the hotel and, if it was found that there had been anti-union discrimination, to ensure that the workers concerned were reinstated in their posts, without loss of pay. It further requested the Government to initiate meetings between the hotel management and the trade union with a view to avoiding violations of trade union rights in the future. The Committee concluded that grave violations of union rights had been committed by the hotel management and local authorities, instructed the Government to fully investigate the incidents of police detention, violence and harassment of union members and requested that the Government report back to the ILO. The complainant further recalls that on 7 April 2009, the IUF submitted additional information on Case No. 2169 requesting the Committee to call on the Government to implement the Committee’s recommendations of June 2003. According to the complainant, the Government has not done so, and there have been new attacks on workers, their union and their rights by the hotel management in collusion with the police.
3. 479. The complainant also recalls that, as reported under Case No. 2169, the Sindh Labour Court ordered on 26 February 2011 the reinstatement of the dismissed members and officers of the Pearl Continental Hotel Karachi Employees Union. Management filed an appeal against this order before the Sindh Labour Appellate Tribunal. On 15 January 2013, the Sindh Labour Appellate Tribunal rejected the appeal and upheld the order of the Labour Court. This decision applied to General Secretary Ghulam Mehboob and 19 other officers and members. The complainant also recalls that Ghulam Mehboob and Basheer Hussain had been dismissed for “absenteeism” while being held in jail on false charges, which were dismissed many years later. The Sindh Labour Appellate Tribunal also reinstated seven security guards whose reinstatement application had been declined by the Labour Court in February 2011.
4. 480. Following the reinstatement of the abovementioned union officers and members in January 2013, the union, certified as the hotel employees’ collective bargaining representative, submitted a charter of demands for negotiation. Management’s response was to ignore the request for negotiations and to again harass and victimize union members and officers.
5. 481. Thus, on 25 February 2013, Shazia Nosheen, a restaurant cashier with 15 years of service, was detained for hours in the General Manager’s office. Her mobile phone was taken from her, and she was pressured under threat of dismissal to sign a false statement. Ms Nosheen refused and filed the following day a police complaint for illegal detention. On 27 February 2013, she was suspended on the basis of a false disciplinary action dated 25 February – the day she had been detained and threatened by the management. On 21 March 2013, Ms Nosheen approached the court to register a complaint (known as First Information Report) against management on the ground of these incidents. On that day, a judge directed police to register her complaint, which she recorded at Artillery Police Station on 22 March 2013. When she received her copy of the report, however, it was dated 24 March 2013. The report date had been falsified by two days to allow the police to collude with hotel management to produce a police complaint against Ms Nosheen dated 22 March 2013 before Ms Nosheen’s police complaint. With the support of the union the case is being brought to the provincial ombudsman.
6. 482. On 25 February 2013, the day Shazia Nosheen was forcibly detained by security staff and managers, waiter and union member Syed Farhan Ahmed Zaidi was sequestered by management and pressured to sign a statement against Shazia Nosheen. Two days later, he was disciplined and suspended. On 1 March 2013, while accompanying his children to school, two men attempted to kidnap him and severely beat him (see pictures enclosed to the complaint).
7. 483. On 4 March 2013, management issued show cause notices to union treasurer Mazhar Iqbal and three active members.
8. 484. The union presented a fresh charter of demands, but management failed to appear for the conciliation hearing. On 11 March 2013, the conciliator declared the process a failure, clearing the way for the union to take legal strike action.
9. 485. On 13 March 2013, security guards attempted to stop union General Secretary Ghulam Mehboob and a group of members from entering the hotel (it should be noted in this context that the hotel has not contested the January 2013 reinstatement order of the Sindh Labour Appellate Tribunal, which means that Mr Mehboob and the other union members were legally employed by the hotel at the time). Security guards and company thugs attacked and beat them.
10. 486. These actions prompted the workers to declare the strike, to which they were legally authorized. Police raided the hotel and unleashed a baton charge against the strikers in the basement, where the changing room is located. More than 50 union members and officers were arrested and taken to the police station bound in ropes (see pictures enclosed to the complaint); 45 have been charged with criminal offenses. Additional legal charges have been filed against five union officers (including General Secretary Mehboob), who were only released on bail after 14 hours of detention. The charges carry fines and imprisonment of up to two years.
11. 487. After the mass arrests and the release of the workers on bail, the union learned that management planned to terminate many more active union members and officers. The union immediately approached the Karachi bench of the National Industrial Relations Commission (NIRC) to inform them of the pending dismissals. On 20 March 2013, the NIRC issued stay orders prohibiting hotel management from taking any action against the 62 workers (see names annexed to the complaint). Management, however, ignored the order and violated the law by using security guards to forcibly prevent these workers from entering the hotel. The union filed a contempt of court application before the NIRC, and, on 27 March 2013, the NIRC issued contempt of court notices to six management officers ordering them to appear on 8 April 2013.
12. 488. In the complainant’s view, the allegations illustrate that hotel management and police are colluding to repress the exercise of trade union rights at this establishment. The union has identified four police officials directly implicated in attacking and arresting striking workers (Shahid Hayat, Deputy Inspector General Karachi South; Saddar Malik Ahsan, Deputy Superintendent of Police; Ali Raza, Station House Officer; and Arshad Janjua, Assistant Sub-Inspector). The complainant considers that, ten years after the 2003 recommendations made by the Committee in the framework of Case No. 2169, the Government has refused to respond adequately to the Committee or implement its recommendations, has failed to ensure respect for Conventions Nos 87 and 98 and continues to deny workers at the abovementioned hotel their rights. The IUF therefore urgently calls on the Committee to recall to the Government of Pakistan its responsibilities and the need to take prompt corrective measures.

B. The Committee’s conclusions

1. 489. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations even though it has been requested several times to do so, including through an urgent appeal.
2. 490. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], 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. 491. 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, para. 31].
4. 492. The Committee notes that, in the present case, the complainant organization alleges anti-union actions by the management of the Pearl Continental Hotel Karachi and the failure by the Government to ensure that Conventions Nos 87 and 98 are applied in practice. While welcoming the information provided by the complainant that the reinstatement orders issued by the Labour Court in February 2011 for 20 dismissed members and officers (including General Secretary Ghulam Mehboob) of the Pearl Continental Hotel Karachi Employees Union (see Case No. 2169, 360th Report, para. 87), were upheld on 15 January 2013 by the Sindh Labour Appellate Tribunal which also reinstated seven security guards whose reinstatement application had been initially declined, the Committee cannot but express its concern at the new series of allegations of anti-union violence, harassment and dismissals in the above hotel establishment and at the apparent recurrence of similar infringements of trade union rights in one and the same workplace. The Committee recalls that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government.
5. 493. In particular, the Committee notes the following allegations: (i) on 25 February 2013, union member Shazia Nosheen was detained in the manager’s office, her mobile phone was confiscated and she was pressured under threat of dismissal to sign a false statement; subsequently, she was suspended on the basis of a false disciplinary action; (ii) on the same day, union member Syed Farhan Ahmed Zaidi was sequestered by management and pressured to sign a statement against Shazia Nosheen, then he was disciplined and suspended, and subsequently he was the subject of a kidnapping attempt and severe beating; (iii) on 13 March 2013, General Secretary Ghulam Mehboob and a group of union members were prevented from access to the hotel and then attacked and beaten by security guards and company thugs; (iv) following the declaration of a lawful strike on the same day, police raided the hotel and beat the strikers; more than 50 union members and officers were arrested, taken to the police station in ropes and then released on bail; 45 were charged with criminal offenses, and additional legal charges carrying fines and imprisonment of up to two years were filed against five union officers (including General Secretary Mehboob) who were only released on bail after 14 hours of detention; and (v) 62 union officers and members were dismissed on 20 March 2013.
6. 494. In the absence of the Government’s reply, the Committee wishes to generally recall certain principles that have a bearing on the present case. With respect to the alleged beatings of several union members and officers by company security guards, as well as harassment and coercion of two union members by management, the Committee wishes to generally recall that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. Moreover, in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 44 and 50]. As regards the alleged use of force by police against the strikers, the Committee emphasizes that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Digest, op. cit., para. 647]. Concerning the arrest, detention, and criminal charges filed against union officers and members having participated in the strike, the Committee recalls that the arrest of trade unionists and leaders of employers’ organizations may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities; that the peaceful exercise of trade union rights (strike and demonstration) by workers should not lead to arrests and deportations; and that the authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association [see Digest, op. cit., paras 67, 673 and 671]. In relation to the alleged dismissals following the strike and the ensuing arrests, the Committee has, in certain cases, found it difficult to accept as a coincidence unrelated to trade union activity that heads of departments should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers, but also of members of their union committee. The Committee recalls that the dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98, and highlights that arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve [see Digest, op. cit., paras 794, 661 and 674].
7. 495. In view of the seriousness of the complainant’s allegations (including detention, sequestration and beatings), the Committee urges the Government to provide its observations on these allegations without further delay. In light of the above, the Committee expects the Government to make every effort to ensure respect for these principles in the aforementioned hotel establishment. In particular, as it has done in previous cases concerning Pakistan (see Case No. 2902, 365th Report, para. 1121; and Case No. 2169, 331st Report, paras 639–640), the Committee requests the Government to institute immediately an independent inquiry into the following allegations: (i) the harassment of union members; (ii) the acts of violence on 25 February and 13 March 2013 against several union members, General Secretary Ghulam Mehboob and workers participating in a strike; (iii) the subsequent brief arrest of 50 union officers and members and filing of criminal charges against them; and (iv) the anti-union dismissals of 62 union officers and members following the strike; with a view to fully clarifying the facts, determining responsibilities, punishing those responsible and preventing the repetition of such acts. The Committee requests the Government to inform it of the outcome of this investigation and to keep it informed of any follow-up or redress measures taken. It firmly expects that, should it be found that these unionists were dismissed or charged for the exercise of legitimate trade union activities, the Government will take all necessary steps to ensure their swift reinstatement in their previous positions without loss of pay and the immediate dropping of all pending criminal charges.
8. 496. Furthermore, the Committee requests the Government to make efforts to obtain the comments of the company, via the employers’ organization concerned so that the Committee may examine the allegations in this case in full knowledge of the facts.