Informe provisional - Informe núm. 375, Junio 2015

1. 390. The Committee last examined this case at its June 2014 meeting when it presented an interim report to the Governing Body [see 372nd Report, approved by the Governing Body at its 321st Session (June 2014), paras 474–497].
2. 391. The complainant organization, International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), submitted additional observations in a communication dated 7 April 2015.
3. 392. At its March 2015 meeting [see 374th Report, para. 6], the Committee issued an urgent appeal 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 information or observations requested from the Government had not been received in due time. To date, the Government has not sent any information in this regard.
4. 393. 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. Previous examination of the case

1. 394. In its previous examination of the case, the Committee made the following recommendations [see 372nd Report, para. 497]:
   • (a) The Committee urges the Government to provide its observations on the complainant’s serious allegations without further delay.
   • (b) In light of the principles enounced in its conclusions, 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, 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.
   • (c) 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.

B. Additional information from the complainant

1. 395. In its communication dated 7 April 2015, the IUF provides observations on the developments occurring since its last communication of 8 April 2013 [see 372nd Report, paras 477–488].
2. 396. With respect to the anti-union dismissals, as reported under Case No. 2169, the complainant indicates that 21 union officers and members are still awaiting reinstatement more than two years after the definitive court order by the Sindh Labour Appellate Tribunal on 15 January 2013, which the Government refuses to enforce. Five workers have reached retirement age and one has died while awaiting reinstatement. Over the next few years, many more will reach retirement age without having obtained justice.
3. 397. With respect to union member Shazia Nosheen, who was detained by hotel management on 25 February 2013 and pressured to sign a false statement, she is still on bail as her case is still pending in court. With respect to the 13 March 2013 mass arrests of union members and officers, police filed charges against 47 members and union officers, including five members of the union Executive, charging them with an illegal presence at the hotel, although they were legally employed by the hotel according to the terms of the reinstatement order, as noted above. The complainant adds that the case continues and the accused union members are required to present themselves in court on a monthly basis. The complainant considers that this is yet another instance where police and courts are being used to frustrate the implementation of the Committee’s recommendations and reinstatement decisions of the Labour Court. The complainant states that management of the hotel still refuses to recognize the union and enter into good faith collective bargaining negotiations, and the Government refuses to effectively ensure basic rights and recognition to the union.
4. 398. With respect to the 20 March 2013 stay orders of the National Industrial Relations Commission (NIRC) prohibiting hotel management from taking any action against 62 workers, only 7 have been allowed to return to work and 47 are still seeking to return to work after being refused entry by security guards.
5. 399. The complainant is of the view that the following sequence of events illustrates the numerous legal and other barriers workers have been forced to endure since the complaint was lodged. On 1 April 2013, hotel management wrote to the union’s General Secretary Ghulam Mehboob indicating that it refused to accept the NIRC order and denying that any workers were prevented from entering the hotel. The General Secretary replied on 6 April 2013 stating that workers were denied entry by hotel security and were obliged to sit outside the hotel gate. On 8 April 2013, the NIRC instructed the hotel to allow workers to perform their duties; on 9–10 April 2013, the union’s General Secretary wrote to the hotel informing management that 62 workers were denied access to their workplaces and payment of their salaries in violation of the NIRC orders.
6. 400. On 18 April 2013, workers once again informed the NIRC that they were denied entry to the hotel, were unable to perform their duties and were not receiving their salaries. The NIRC responded by instructing management to release these workers’ salaries and to allow them to enter the premises to perform their jobs; the Assistant Director of Labour from the provincial ministry would accompany the workers into the hotel. Management of the hotel allowed 30 workers out of 62 to come inside the gate, but they were then told to sit in the parking area, where they remained for one week. On 26 April 2013, management applied to the NIRC to put these 30 workers on ‘special leave’; the request was granted. The remaining 32 workers were not taken on duty, although the hotel management presented nothing in writing. Employment was terminated with regard to six of the 32 workers by verbal communication because they were third party contract workers; their cases are pending at the NIRC. There were no sessions of the Karachi NIRC from May to October 2013.
7. 401. On 31 October 2013, workers wrote to the NIRC stating that they were not being paid their full compensation (gratuities and bonuses). The NIRC instructed the hotel management to pay the employees their full salaries, but management failed to implement the order. On 8 November 2013, workers filed a complaint with the NIRC stating that, despite the stay orders, hotel management was not allowing them to work. The NIRC directed the General Manager of the hotel to appear in court. The union’s General Secretary wrote to the hotel management on 19 November 2013 demanding implementation of the 31 October 2013 order. The union President wrote to management on 20 November 2013 requesting the hotel to pay the arrears in the obligatory annual pay increment. The hotel management did not respond to the communication.
8. 402. On 14 February 2014 and on 1 April 2014, workers who were stopped at the hotel gate from entering the premises each wrote separate letters to management protesting their lack of access in defiance of the stay orders and requesting legal entitlements due to them as employees. Management did not respond to these communications. On 19 May 2014, hotel management transferred the 12 workers barred from entering the hotel to Pearl Continental facilities in Peshawar, Muzzafarabad and Rawalpindi. Eleven of these workers wrote to the NIRC on 3 June 2014; the NIRC stopped the transfer orders and requested a response from management.
9. 403. On 26 August 2014, a hearing on the case involving the Pearl Continental workers was held at the NIRC which the General Manager of the hotel attended. The General Manager promised to resolve the outstanding issues within 15 days. At the NIRC hearing of 17 September 2014, the Human Resources Director stated that the General Manager had been transferred and that other issues were being discussed by the Board of Directors. NIRC sessions of 12 and 27 November were adjourned because management did not respond on the outcome of the meeting of the Board of Directors.
10. 404. On 16 December 2014, the NIRC ordered the payment of salaries to union officers and members who were reinstated by orders of the appeal tribunal and labour court. The hotel did not respond to a communication from the union demanding compliance with the decision. On 20 January 2015, 17 workers were barred from entering the hotel by security and 27 workers were put on ‘special leave’ to receive only the base salary rather than the full compensation to which they are legally entitled.
11. 405. In the complainant’s view, despite the clear decisions rendered by the NIRC and the Sindh Labour Appellate Tribunal, the police and other branches of the judicial system have colluded with the Pearl Continental Hotel Karachi management to prevent the implementation of these decisions as well as the recommendations of the Committee.
12. 406. The complainant states that the information provided in its communication demonstrates the Government’s failure to comply with the letter and spirit of the ILO’s recommendations as well as complicity in ongoing rights violations. Flagrant violations of freedom of association continue and the complainant therefore calls on the Committee to respond firmly and appropriately.
13. 407. The complainant adds that there has been essentially one uninterrupted sequence of violations of freedom of association over 14 years at the Pearl Continental Hotel Karachi. The IUF therefore urgently calls on the Committee to recall to the Government of Pakistan its obligations.

C. The Committee’s conclusions

1. 408. The Committee deeply regrets that, despite the time that has elapsed since the complaint was presented in April 2013, the Government has still not replied to the complainant’s allegations, despite having been invited on several occasions to do so, including by means of two urgent appeals [see 371st and 374th Reports, para. 6].
2. 409. In these circumstances and in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee finds itself obliged to present, once again, a report on the substance of the case without being able to take into account of the information it hoped to receive from the Government.
3. 410. 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 practice. The Committee remains confident that, while 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. 411. The Committee recalls that this case concerns serious allegations of 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.
5. 412. With regard to the anti-union dismissals which were examined under Case No. 2169, the Committee notes the complainant’s indication that 21 union officers and members are still awaiting reinstatement more than two years after the definitive court order by the Sindh Labour Appellate Tribunal on 15 January 2013. It notes that five workers have reached retirement age and one has died while awaiting reinstatement. The Committee recalls in this regard the principle that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105].
6. 413. The Committee further recalls the allegations of this present case which were examined at its June 2014 meeting [see 372nd Report, para. 493] and notes the additional information provided on the following acts: (i) union member Shazia Nosheen was detained by hotel management and pressured to sign a false statement on 25 February 2013 and is still on bail with her court case still pending; (ii) police arrested union officers and members on 13 March 2013 and charges were filed against 47 of them, including five members of the union Executive, for an illegal presence at the hotel, although, the union officers were legally employed by the hotel according to the terms of the reinstatement order; (iii) while stay orders were issued by the NIRC on 20 March 2013 prohibiting hotel management from taking any action against 62 union officers and members, only 7 have been allowed to return to work while 47 are still seeking to return to work after being refused entry by security guards.
7. 414. The Committee expresses its concern at the latest allegations of anti-union actions at the hotel establishment and refusal to abide by court and NIRC orders. In particular, the Committee notes the allegations communicated by the complainant on the sequence of events between April 2013 and January 2015, which include the following: (i) on 1 April 2013, hotel management wrote to the union’s General Secretary Ghulam Mehboob indicating that it refused to accept the NIRC order and denying that any workers were prevented from entering the hotel; (ii) on 9–10 April 2013, the union’s General Secretary wrote to the hotel informing management that 62 workers were denied access to their workplaces and payment of their salaries in violation of NIRC orders; (iii) on 18 April 2013, workers once again informed the NIRC that they were denied entry to the hotel, were unable to perform their duties and were not receiving their salaries; (iv) the NIRC responded by instructing management to release these workers’ salaries and to allow them to enter the premises to perform their jobs (the Assistant Director of Labour from the provincial ministry would accompany the workers into the hotel); (v) management of the hotel allowed 30 workers out of 62 to come inside the gate, but they were then told to sit in the parking area, where they remained for one week; (vi) on 26 April 2013, management applied to the NIRC to put these 30 workers on ‘special leave’; the request was granted (the remaining 32 workers were not taken on duty, although the hotel management presented nothing in writing. Employment was terminated with regard to six of the 32 workers by verbal communication because they were third party contract workers (their cases are pending at the NIRC); (vii) on 31 October 2013, workers wrote to the NIRC stating that they were not being paid their full compensation (gratuities and bonuses) and, thereafter, the NIRC instructed the hotel management to pay the employees their full salaries, but management failed to implement the order, despite written complaints filed by workers; (viii) on 14 February 2014 and on 1 April 2014, workers who were stopped at the hotel gate from entering the premises each wrote separate letters to management protesting their lack of access in defiance of the stay orders and requesting legal entitlements due to them as employees. Management did not respond to these communications; (ix) on 19 May 2014, hotel management transferred 12 workers barred from entering the hotel to Pearl Continental facilities in Peshawar, Muzzafarabad and Rawalpindi. Eleven of these workers wrote to the NIRC on 3 June 2014; the NIRC stopped the transfer orders and requested a response from management.
8. 415. The Committee further notes that, on 26 August 2014, a hearing on the case involving the hotel workers was held at the NIRC in the attendance of the General Manager of the hotel. The General Manager promised to resolve the outstanding issues within 15 days. At the NIRC hearing of 17 September 2014, the Human Resources Director stated that the General Manager had been transferred and that other issues were being discussed by the Board of Directors. NIRC sessions of 12 and 27 November were adjourned because management did not respond on the outcome of the meeting of the Board of Directors.
9. 416. On 16 December 2014, the NIRC ordered the payment of salaries to union officers and members who were reinstated by orders of the appeal tribunal and labour court. The hotel did not respond to a communication from the union demanding compliance with the decision. On 20 January 2015, 17 workers were barred from entering the hotel by security and 27 workers were put on ‘special leave’ to receive only the base salary rather than the full compensation to which they are legally entitled.
10. 417. In the absence of the Government’s reply, the Committee recalls its previous recommendations and urges the Government to institute the necessary independent inquiries and to provide detailed information without delay. Finally, as regards the actions against union officers and members, including dismissals and refusing entry for reinstated workers, the Committee, noting the definitive decision rendered by the Sindh Labour Appellate Tribunal on 15 January 2013 and the numerous orders of the NIRC, including orders of 20 March 2013 and 31 October 2013, firmly expects that the Government will take all necessary steps for their immediate enforcement, thus ensuring the reinstatement of the workers in question, compensation for lost wages and any damages suffered. The Committee wishes to recall in this respect that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Digest, op. cit., para. 17].