Informe provisional - Informe núm. 378, Junio 2016

1. 573. The Committee last examined this case at its June 2015 meeting when it presented an interim report to the Governing Body [see 375th Report, paras 390–418, approved by the Governing Body at its 324th Session (June 2015)].
2. 574. At its March 2016 meeting [see 377th Report, para. 7], 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 this case at its next meeting, even if the observations or information requested from the Government had not been received in due time. To date, the Government has not sent any information.
3. 575. 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. 576. In its previous examination of the case, the Committee made the following recommendations [see 375th Report, para. 418]:
   • (a) 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]. The Committee urges the Government to provide its observations on the complainant’s serious allegations without further delay.
   • (b) The Committee urges 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; and (iii) the subsequent brief arrest of union officers and members and filing of criminal charges against 47 of them. 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.
   • (c) 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.
   • (d) The Committee expects the Government to make efforts to obtain the comments of the company, via the employers’ organization concerned, so that the Committee will be in a position to examine this case in full knowledge of the facts.
2. 577. In June 2015, the Chairperson of the Committee met with a Government representative at the Committee’s request in order to express concern over the lack of cooperation on the part of the Government with regard to this case. The Government representative indicated that the National Industrial Relations Commission (NIRC) ordered the Pearl Continental Hotel management to reinstate 32 out of 62 dismissed employees. However, the employer refused entry to these workers and obtained a stay order on reinstatement from Sindh High Court, the highest judicial body of the province. The Government representative stated that the Government of Sindh had appointed an Additional Advocate General to pursue the case in the Sindh High Court and that the matter was still sub judice.

B. The Committee’s conclusions

1. 578. 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 three urgent appeals and in a meeting between the Chairperson and one of its representatives in June 2015. The Committee notes that the object of this case is closely linked to that of Case No. 2169 and the facts brought up by the complainant are in direct continuation of those referred to in that case, which was first filed in 2002. The Committee has hence to express its deep concern, that after such an excessively long time and with the outstanding issues unresolved, the Government still fails to cooperate.
2. 579. Hence, in accordance with its 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. 580. 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. 581. While observing that the specific issues raised in this case concern the Sindh Province, the Committee is bound to remind the federal Government that the principles of freedom of association should be fully respected throughout its territory. The Committee urges the Government to bring its conclusions and recommendations to the attention of the competent authorities of the Sindh Province without delay with a view to resolving the pending matters in this case and to obtain full particulars from the Sindh Province for the Committee’s next examination.
5. 582. The Committee recalls that this case concerns serious allegations of anti-union actions including transfer and dismissal, harassment, arrest and criminal prosecution of trade union members and officials by the management of the Pearl Continental Hotel Karachi and the Government’s failure to ensure freedom of association..
6. 583. The Committee recalls that the allegations examined in its 372nd and 375th Reports [paras 474–497 and 390–418 respectively] mentioned, among other things, that on 15 January 2013, the Sindh Labour Appellate Tribunal upheld the ruling of the lower court ordering the reinstatement of the union’s General Secretary and 20 other union members (these dismissals were also the object of Case No. 2169, the predecessor to this case concerning the same hotel).While this ruling became final as it was not challenged by the employer, those workers have yet to be reinstated. The Committee further recalls that, following industrial action in response to a labour dispute on 13 March 2013, 62 other union officers and members were allegedly denied access to the workplace, in open defiance of an NIRC order. On 26 April 2013, however, the management requested the NIRC the permission to send 30 out of the 62 workers on “special leave”, which was granted. Out of the remaining 32 workers, six were terminated by verbal communication and their cases are pending before NIRC. On 19 May 2014, 12 workers were transferred to other cities. While the NIRC stopped the transfer orders and required the management to provide a response, the management has refused to pay their salaries or allow them access to hotel premises.
7. 584. The Committee notes that this case raises serious issues of effectiveness of the existing legal guarantees and judicial mechanisms of protection against anti-union discrimination. The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 826]. 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. What causes even greater concern with regard to this case, is that according to the allegations of the complainant, to which the Government has not provided any response, the final judicial order delivered after an excessively long process has yet to be enforced, while over three years after its issuance at least five workers have reached retirement age and one has died in the meantime [see 375th Report, para. 396]. The Committee urges the Government to ensure, without further delay, the execution of the final ruling of Sindh Labour Appellate Tribunal, thus to secure the reinstatement of the workers in question and compensation for lost wages and any damages suffered. In the case of the union member who died while awaiting the enforcement of the judgement, the Committee urges the Government to ensure that his heirs receive adequate compensation. The Committee requests the Government to provide detailed information on the steps taken in this regard.
8. 585. Taking into account the judicial findings of anti-union discrimination, the Committee is bound to note that the ineffectiveness of legal and judicial protection has had a lasting and detrimental effect on the freedom of association and collective bargaining rights of the hotel employees. The Committee understands that with regard to the cases of the 62 workers who were allegedly denied access to the workplace in the aftermath of the industrial action of 13 March 2013, several proceedings were initiated before the NIRC, respectively with regard to the employer’s request for permission to send 30 of those employees on special leave, as well as with regard to the dismissal of the six workers who were terminated by verbal communication and the transfer of 12 workers to other cities. The Committee understands from the information provided to the Chairperson [see para. 5 of this report], that NIRC ordered the reinstatement of 32 of those employees, but the employer obtained a stay order. While the Committee understands the matter is sub judice in Sindh High Court, it is bound to express its deep concern that once again, while an appeal process is under way for an undetermined period of time, an order issued in favour of the workers remains unexecuted. The Committee urges the Government to provide detailed information on the progress of the proceedings concerning these workers and firmly expects that the Sindh High Court’s decision will be rendered without further delay and that it will be fully executed and requests the Government to provide a copy of the final judgment once it is delivered.
9. 586. In the absence of any government response to its previous recommendation to this effect, the Committee once again urges the Government to institute an independent inquiry into the allegations of acts of violence, harassment and arrest of trade union members without further delay and to keep it informed of all steps taken in this regard and of the outcome of the investigation.
10. 587. The Committee recalls the complainant’s allegation that acts of violence and anti-union discrimination were committed in the context of an industrial dispute and in reaction to a lawful strike that followed the failure of conciliation proceedings due to the employer’s lack of participation. The complainant further alleged that despite the union’s legal certification as the hotel employee’s bargaining representative, the management of the hotel still refuses to recognize the union and to enter into good faith collective bargaining with it, and the Government refuses to effectively ensure basic rights and recognition. The Committee recalls from its examination of Case No. 2169 that in 2011, the hotel employees had been without a collective agreement for ten years [see 360th Report, para. 88] and it understands that initiating collective bargaining at the hotel remains a daunting process. The Committee once again draws the attention of the Government to Article 4 of Convention No. 98 according to which, measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee urges the Government to take measures to encourage and promote free and voluntary negotiations between the employer and the union at the hotel, with a view to the peaceful resolution of outstanding matters and for the determination of workers’ terms and conditions of employment through binding collective agreements. The Committee requests the Government to keep it informed of the measures taken in this regard.