Informe provisional - Informe núm. 382, Junio 2017

1. 450. The Committee last examined this case at its May–June 2016 meeting, when it presented an interim report to the Governing Body [see 378th Report, paras 573–588, approved by the Governing Body at its 327th Session].
2. 451. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) provides additional information in a communication dated 4 April 2017.
3. 452. The Government provides its observations in a communication received on 8 May 2017.
4. 453. 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. 454. At its May–June 2016 meeting, the Committee made the following recommendations [see 378th Report, para. 588]:
   • (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 three urgent appeals and in a meeting between the Chairperson and one of its representatives. The Committee urges the Government to provide its observations on the complainant’s serious allegations without further delay.
   • (b) 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.
   • (c) The Committee once again urges the Government to take all necessary steps 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 judgment, 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.
   • (d) The Committee urges the Government to provide detailed information on the progress of the proceedings concerning the workers who were allegedly denied access to the workplace after the events of March 2013. The Committee 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.
   • (e) The Committee once again urges the Government to institute an independent inquiry into the following allegations without further delay and to keep it informed of all steps taken in this regard and the outcome of the investigation: (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.
   • (f) 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 peaceful resolution of outstanding matters and for the determination of workers’ terms and conditions of employment through binding collective agreements and requests the Government to keep it informed of the measures taken in this regard.

B. The complainant’s additional information

1. 455. In its communication dated 4 April 2017, the complainant alleges that the Government has not taken any positive action in response to the Committee’s previous recommendations and provides information on the latest developments in the case. In particular, the complainant indicates that: (i) in July 2016, the Sindh Cabinet was reorganized with a new Chief Minister, who appointed a new Labour Advisor; (ii) on 18 July 2016, the Secretary of the Labour Ministry, Sindh Province called a first meeting between the management of the Pearl Continental Hotel in Karachi (hereinafter, the Hotel) and the Hotel trade union but the management failed to attend; a second meeting organized the following day was attended by the management who stated that they would consult the head office; (iii) further meetings were held in July and August 2016 but did not produce any results and in September 2016, the Secretary of the Labour Ministry once again approached the Hotel management and asked the union to prepare a draft collective agreement but the management refused to discuss the issues; (iv) although the union approached the Secretary of the Labour Ministry on several occasions between September 2016 and January 2017, it was repeatedly told that the management was not ready to talk to the union or negotiate any of the issues; and (v) in separate meetings between the lawyers of the employer and the union, employer representatives clearly indicated that the management was not ready to negotiate with the union or to reinstate the unfairly dismissed workers. According to the complainant, the Government of Sindh, through the Labour Advisor and the Secretary of the Labour Ministry, failed to take any measures to address the management’s consistent refusal to negotiate with the union. In December 2015, the unions of the group’s hotels in Karachi and Lahore decided to establish a national union focused on resolving local issues and obtaining reinstatement of the dismissed workers. In March 2017, the national union approached the National Industrial Relations Committee (NIRC) to issue a certificate of collective bargaining.
2. 456. With regard to the status of workers and union members referred to in the complaint, the complainant provides the following updated information: (i) out of 65 workers – 49 permanent and 16 casual – who were barred from work in 2013, three workers resigned, 46 were sent on indefinite leave, while receiving salaries, and the cases of 62 workers are currently before the NIRC; and (ii) out of 33 union officers and active members who had been dismissed, five reached retirement age, one died, eight resigned and 19 are waiting for reinstatement as per court order, while receiving wages, but the management appealed to the Sindh High Court against their reinstatement order.

C. The Government’s reply

1. 457. In its communication received on 8 May 2017, the Government indicates that it is cognizant of the gravity of the issues in this case and is making earnest efforts to resolve the dispute by persuading all stakeholders to dispose of the matter in question. In particular, the Government states that: (i) the Ministry of Overseas Pakistanis and Human Resources Development (OPHRD) is constantly in touch with the Sindh Labour Department in order to get the issues resolved; (ii) the Secretary of the Labour Ministry, Sindh Province arranged various meetings with the Hotel management and after a series of long arguments, the management orally accepted 60 per cent of the demands of the Hotel union and the workers; (iii) the Director of Sindh Labour Department requested the General Secretary of the Hotel union to consider an amicable settlement of the dispute but was informed about the workers’ grievances – five cases were pending before the Sindh High Court, 40 cases were before a member of the NIRC, a further 18 were before a full bench of the NIRC and two more were in Session Court; (iv) the Ministry of OPHRD is seeking further details from the Sindh Labour Department as to the proceedings concerning workers who were allegedly denied access to the workplace after the events of March 2013, the NIRC has been requested to dispose of the cases of union members and Hotel employees as a matter of priority and the cases pending before the Sindh High Court should also be pursued for quick disposal; and (v) after discussing the issue of compensation to aggrieved workers, the Sindh Labour Department informed that the Workmen Compensation Commissioner of South Division of the Labour Department has been directed to decide and dispose of all five cases of dues involving claims of millions of rupees within the shortest possible time.
2. 458. With regard to the Committee’s request to institute an independent inquiry into a series of alleged incidents of harassment, violence, arrest and filing of criminal charges against trade unionists in March 2013, the Government indicates that the Ministry of OPHRD has listed this case in the agenda of the upcoming Federal Tripartite Consultation Committee (FTCC) for necessary action. The Government also states that it noted the Committee’s previous request to promote free and voluntary negotiations between the parties and that it will inform of any progress.

D. The Committee’s conclusions

1. 459. 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 a hotel in Karachi in the Sindh Province and the Government’s failure to ensure freedom of association.
2. 460. The Committee notes, on the one hand, the additional information provided by the complainant in which it alleges that the Government has not taken any concrete action to positively address the Committee’s recommendations and that despite a number of meetings with the Hotel management, no significant progress has been made on the pending issues and, on the other hand, the Government’s indication that it is making earnest efforts to resolve the dispute by continuously persuading all stakeholders to dispose of the matter in question.
3. 461. Regarding the alleged dismissals of trade union members, the Committee recalls that, according to the complainant, out of the 33 dismissed workers, eight have resigned, five reached retirement age and one died in the meantime. The Committee further notes the updated information provided and expresses deep concern at the fact that, more than four years after the Sindh Labour Appellate Tribunal upheld the 2011 ruling of the Sindh Labour Court ordering reinstatement of the Hotel union’s General Secretary and 20 other union members, 19 workers have yet to be reinstated while management’s appeal to the Sindh High Court is still pending. The Committee also notes the Government’s indication that a Compensation Commissioner from the Labour Department has been directed to dispose of five cases regarding claims for compensation but observes that the Government does not specify whether this measure concerns workers who reached the retirement age, the heirs of the worker who died or any other workers. Recalling its previous examination of this issue, the Committee notes that this case raises serious concerns as to the effectiveness of the existing legal guarantees and judicial mechanisms of protection against anti-union discrimination. It wishes to emphasize once again that delay in the conclusion of proceedings giving access to remedies for anti-union discrimination 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 [see 378th Report, para. 584]. Under these circumstances, the Committee firmly expects that the Sindh High Court’s decision on the management’s appeal will be rendered without further delay and, should the reinstatement order be confirmed, urges the Government to ensure the execution of the ruling and 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 judgment, the Committee requests the Government to indicate the steps taken in follow-up to its previous recommendations that his heirs receive adequate compensation. The Committee also requests the Government to inform on the outcome of the claims for compensation before the Compensation Commissioner and to provide the judgment of the Sindh High Court once adopted.
4. 462. With regard to the 65 workers who were allegedly denied access to the workplace in the aftermath of the industrial action in March 2013, the Committee recalls from its previous examination of the issue that several proceedings were initiated before the National Industrial Relations Committee (NIRC), that reinstatement of 32 workers was ordered but that the employer obtained a stay order from the Sindh High Court and that the matter was sub judice before the Court. The Committee observes that both the complainant and the Government indicate that numerous cases of workers’ grievances are still pending before the competent entities – the complainant states that the cases of 62 workers are still pending before the NIRC and according to the Government, 65 cases are pending before the Sindh High Court, the Session Court and the NIRC. While taking due note of the Government’s indication that, following its intervention, all pending cases concerning trade union members and Hotel workers, should be dealt with as a matter of priority, the Committee is bound to note once again 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 and emphasizes that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105]. In light of these considerations, the Committee firmly expects that the Sindh High Court’s decision on the matter will be rendered without further delay and that all proceedings pending before the NIRC concerning the workers who were allegedly denied access to the workplace after the events of March 2013 will be properly and expeditiously dealt with. The Committee once again urges the Government to provide detailed information on the progress of these proceedings.
5. 463. The Committee notes the Government’s indication that its previous request to institute an independent inquiry into allegations of anti-union harassment and violence has been submitted to the FTCC for necessary action. In view of the gravity of the allegations, the Committee expects that the discussion of the FTCC will be fruitful and that an independent inquiry will be instituted into the following allegations without further delay: (i) the harassment of union members; (ii) the acts of violence on 25 February and 13 March 2013 against several members of the Hotel trade union, its 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 keep it informed of all steps taken in this regard and the outcome of the investigation.
6. 464. The Committee further notes that the complainant denounces, on the one hand, the management’s refusal to negotiate with the trade union on the outstanding issues, despite the elaboration of a draft collective agreement requested by the Labour Ministry and various meetings held, and on the other hand, the lack of measures taken by the Government of Sindh in response to the management’s consistent refusal to negotiate. The Committee notes, however, the Government’s statement that it has been constantly in touch with the Sindh Labour Department to get the issues resolved, that after lengthy meetings and discussions, the management orally accepted 60 per cent of the trade union’s demands and that the Director of Sindh Labour Department requested the General Secretary of the union to consider an amicable settlement of the dispute. The Committee trusts that the Government will continue its efforts towards a peaceful resolution of the outstanding matters and requests it to keep it informed of any developments in this regard.
7. 465. Finally, considering this case as urgent due to the time that has elapsed without any resolution to these long-standing matters, the Committee firmly hopes that the Government will be in a position to provide detailed information on the effective implementation of its recommendations in the very near future.