Informe provisional - Informe núm. 387, Octubre 2018

1. 532. The Committee last examined this case at its June 2017 meeting, when it presented an interim report to the Governing Body [see 382nd Report, paras 450–466, approved by the Governing Body at its 330th Session].
2. 533. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) provided additional information in communications dated 24 July 2017 and 26 July 2018.
3. 534. The Government provided its observations in communications dated 25 April and 23 October 2018.
4. 535. 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. 536. At its June 2017 meeting, the Committee made the following recommendations [see 382nd Report, para. 466]:
   • (a) The Committee firmly expects that the Sindh High Court’s decision on the management’s appeal against the reinstatement order of 19 union members 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.
   • (b) The Committee firmly expects that the Sindh High Court’s decision concerning the workers who were allegedly denied access to the workplace after the events of March 2013 will be rendered without further delay and that all proceedings pending before the NIRC in this regard will be properly and expeditiously dealt with. The Committee once again urges the Government to provide detailed information on the progress of these proceedings.
   • (c) In view of the gravity of the allegations, the Committee expects that the discussion of the Federal Tripartite Consultative Committee 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.
   • (d) 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.

B. The complainant’s additional information

1. 537. In communications dated 24 July 2017 and 26 July 2018, the complainant alleges that the Government had taken no substantial action, at any level, in response to the recommendations of the Committee.
2. 538. Responding to the Government’s previous replies to the Committee’s recommendations, the complainant acknowledges that several meetings were convened by the Secretary of the Labour Ministry, Sindh Province, between the management of Pearl Continental Hotel in Karachi (hereinafter, the Hotel) and the IUF-affiliated national union representing employees of the Hotel. However, while the union attended every meeting, the Hotel management had not. The complainant also questions the Government’s statement that the management of the Hotel had accepted orally 60 per cent of the union’s demands. The Federal Tripartite Labour Consultative Committee discussed the case at a meeting in Islamabad on 3 May 2018. During the meeting, the representative of the Provincial Ministry stated that the Hotel management had agreed to resolve the issues, but was unable to explain what resolution had been achieved or to identify indications of progress.
3. 539. On 4 July 2018, the Federal Ministry for Overseas Pakistanis & Human Resource Development (MOPHRD) convened a tripartite meeting on the case. According to the complainant, nothing was resolved and there is no indication that as a result of the meeting the Government has taken any concrete measures to implement the Committee’s recommendations or to resolve the conflict.
4. 540. Furthermore, the complainant indicates that the cases in the Sindh High Court are Constitutional Petitions (CPs) challenging the reinstatement orders issued on 15 January 2013 by the Sindh Labour Appellate Tribunal. Since there is no ruling by the Sindh High Court, the decisions of the Labour Appellate Tribunal of 2013 are final and still prevail. However, the Labour Ministry of the Sindh Province, had taken no visible action to advance the proceedings or to ensure compliance on the part of the Hotel.
5. 541. The complainant also indicates, with regard to the statement from the Government that the MOPHRD had requested the National Industrial Relations Committee (NIRC) to dispose in a speedy manner of the numerous grievance cases before it, that there has been no development in this regard since meetings of the NIRC on the cases were adjourned.
6. 542. Additionally, the Sindh Labour Standing Committee established a special tripartite committee to deal specifically with the issues and convened meetings on 1 March and 2 April 2018. The Hotel management failed to attend the first meeting. At the second meeting, the Hotel’s Human Resources Director claimed that the Hotel had disbursed a specified sum for the retirement benefits and arrears of retired workers. However, the complainant notes that the retirees concerned did not include all workers, that is, the retirees from the group of 19 union officers and active members seeking reinstatement who are specifically mentioned in the initial complaint (a group which totalled 33 workers when the complaint was filed). Since then, five workers had reached retirement age and one had died. The heirs of the worker who died have so far received nothing. In fact, none of the workers barred from duty in 2013 have been reinstated. The complainant regrets that neither the Government of Sindh nor the federal Government have taken any legal steps to ensure compliance with the recommendations of the Committee or the 2013 court decision ordering reinstatement. Moreover, there has been no independent enquiry into any of the events enumerated under recommendation (c) of the Committee as well as no response to previous Committee recommendations that enquiries be initiated.
7. 543. In its communication of July 2017, the complainant lists some cases to establish the failure of the Government to take action and the impact on individuals: (i) Mr Meher Muhammad, security guard who was reinstated by the Sindh Labour Appellate Tribunal in January 2013, died in 2007. To date his arrears have not been paid to his heirs; (ii) Mr Sher Afzal, security guard, reinstated by the Sindh Labour Appellate Tribunal, retired in 2012 but his arrears are still not paid; (iii) Mr Muhammad Zareef, security guard, reinstated by the Sindh Labour Appellate Tribunal, retired in 2015 but his arrears are still not paid; (iv) Mr Muhammad Ramzan, employed in the Hotel’s laundry department, was reinstated by the Sindh Labour Appellate Tribunal, retired in 2016 but his arrears are still not paid; (v) Mr Muhammad Farooq, cook, reinstated by the Sindh Labour Appellate Tribunal, retired in 2016, but his arrears are still not paid; (vi) Mr Muhammad Iqbal, a kitchen cleaner, retired in 2016 but his arrears are still not paid; and (vii) Ms Sabeeta Baghuram retired in 2015 but her arrears have not been paid. According to the complainant, since these workers were not paid their arrears they are unable to apply to the Employees’ Old Age Benefit Institution (EOBI) for their retirement pensions. Additionally, Mr Muhammad Saleem, a former cook, retired in 2015 and turned to the NIRC, which ordered only partial payment of the arrears to which he is legally entitled.
8. 544. The complainant recalls that in December 2015 the Hotel’s unions in Karachi and Lahore decided to establish a national union under the terms of the Industrial Relations Act (2012) which, understandably, focused its efforts on resolving local issues and getting the dismissed workers reinstated at the Hotel in Karachi. In March 2017, the national union approached the NIRC to issue a certificate of collective bargaining. However, the referendum process for the determination of collective bargaining status has been systematically blocked as the Government has allowed the Hotel management to file a series of objections with the NIRC to delay the process rather than facilitate a swift, fair and efficient process. The complainant requests the Committee to urge the Government to undertake without delay the measures necessary, thus ensuring freedom of association for the employees of the Hotel.
9. 545. Recalling that the Committee has devoted a substantial amount of time (some 15 years) on the violation by the Hotel of the rights of the employees and their union, and made clear recommendations to the Government following each examination, the complainant urges the Committee to once again recall to the Government its obligations with respect to Conventions Nos 87 and 98 and the need to take meaningful action.

C. The Government’s reply

1. 546. In its communication dated 25 April 2018, the Government indicates, with regard to the Sindh High Court’s decision on the Hotel management’s appeal against the reinstatement order of 19 union members (recommendation (a)), that the Sindh High Court has not yet issued any decision on the matter. The Government will proceed in the light of the decision of the court, once announced. In the case of the union member who died while awaiting the enforcement of the judgment and the recommendation of the Committee concerning any step taken that his heirs receive adequate compensation, the Government indicates that the legal status of such worker shall be determined in the light of the decision of the Court.
2. 547. With regard to the Committee’s request that the Government informs on the outcome of the claims for compensation before the Compensation Commissioner, the Government indicates that a total of five cases are pending before the Compensation Commissioner, South Division of Karachi. Out of these cases, two are pending for cross examination of the applicants and the three remaining cases are at the stage of hearing on objections.
3. 548. With regard to recommendation (b) of the Committee on the Sindh High Court’s decision concerning the workers who were allegedly denied access to the workplace after the events of March 2013 and the proceedings pending before the NIRC, the Government indicates that the decision of the Sindh High Court is still awaited and that the matter will be processed in the light of the decision of the Court. Additionally, in April 2018 the MOPHRD once again requested a timely disposal of the cases by the NIRC during a meeting attended by all stakeholders.
4. 549. The Government also provides minutes of a meeting convened on 26 October 2017 by the Labour and Human Resource Department, Government of Sindh to resolve the dispute between the Hotel management and the union. According to the minutes, no representative of the Hotel management attended the meeting. The minutes referred to a previous meeting held on August 2017 whereby it was agreed that the Hotel management and the union would hold a meeting within a week to discuss possible ways to resolve the dispute and found that the Labour Department had not received any report on progress made in this regard from the Hotel management, despite two reminders. Following discussion, it was decided that the Labour and Human Resource Department, Government of Sindh, would once again issue a letter to the Hotel management for the amicable resolution of all the pending disputes.
5. 550. In its communication dated 23 October 2018, the Government informs that it has set up a Tripartite Committee to conduct an independent inquiry into the issues raised by the complaint. This Tripartite Committee conducted a meeting on 04 July 2018 and after hearing both parties concluded and recommended the following: (i) the Hotel management should take 37 workers back on job. In case the management would have a genuine issue with any of the 37 workers, it should reach an amicable settlement of the dispute to the satisfaction of the worker. In case of redundancy, the worker shall receive such financial benefits he is entitled to under the labour laws. The Hotel management should act in coordination with Mr Zahoor Awan, General Secretary of the Pakistan Workers Federation (PWF), and Mr Majyd Aziz, President of the Employers’ Federation of Pakistan (EFP), to settle the issues, including the situation of Mr Ghulam Mehboob, the General Secretary of the Hotel trade union; (ii) in the case against the 19 workers who were removed from service but for whom a stay order was issued from the Appellate Labour Tribunal, noting that one of the workers has since died and the other 18 workers are on the job, the Hotel management should negotiate with these 18 workers to take them back on job. In case a settlement cannot be reached and a redundancy under the labour laws is decided by mutual consent, the workers should receive compensation within 185 days; (iii) the Hotel management should recognize and work in harmony with the newly registered union under the Industrial Relations Act (IRA 2012) at the national level and will enter positively into dialogue in line with the IRA and ILO Conventions Nos 87 and 98; and (iv) both parties should try to reach at an amicable solution to all outstanding issues through social dialogue.

D. The Committee’s conclusions

1. 551. The Committee recalls that this case concerns serious allegations of anti-union acts, including transfer and dismissal, harassment, arrest and criminal prosecution against trade union officials and members by the management of a Hotel in Karachi in the Sindh Province, and ultimately of the Government’s failure to ensure that the Hotel’s union and its members enjoy freedom of association.
2. 552. The Committee notes once again, on the one hand, the additional information provided by the complainant in which it alleges that the Government has not taken any meaningful action to positively address the Committee’s recommendations and that despite a number of meetings convened to resolve the disputes with the Hotel management, no significant progress has been made on the pending issues and, on the other hand, the Government’s indication on efforts made at both federal and provincial level to resolve the dispute.
3. 553. With regard to the alleged dismissals of trade union members, the Committee recalls that it had previously expressed its deep concern at the time that had elapsed after the Sindh Labour Appellate Tribunal upheld the 2011 ruling of the Sindh Labour Court ordering reinstatement of 21 members of the Hotel’s union, including its Secretary General, 19 workers had yet to be reinstated while the Hotel management’s appeal to the Sindh High Court was still pending. Consequently, the Committee had indicated 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 had emphasized 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]. The Committee takes note with concern of the complainant’s allegations that, while the Sindh Labour Standing Committee had established a special tripartite committee to deal specifically with the issues and convened meetings on 1 March and 2 April 2018, the Hotel management failed to attend the first meeting and subsequently claimed that the Hotel had disbursed a specified sum for the retirement benefits and arrears of retired workers. The complainant regrets that the Government at both federal and provincial levels have not ensured compliance with the Committee’s recommendations nor with the 2013 court order for reinstatement of the workers.
4. 554. The Committee notes from the Government’s latest communication that a Tripartite Committee to conduct an independent inquiry into the issues raised by the complaint set up by the MOPHRD met on 4 July 2018 with both parties and recommended that the Hotel management negotiate with the workers to take them back on job and in the case a settlement cannot be reached and a redundancy is decided by mutual consent, the worker concerned should receive an adequate compensation under the labour laws. The Committee notes in this regard that five years since the order of the first instance court for reinstatement of the 33 workers, one worker has since passed away, eight have resigned and five have retired. The Committee requests the Government to indicate whether the Hotel has accepted to negotiate with the remaining workers in line with the above recommendations and if not, whether the management has maintained its appeal to the Sind High Court. If the appeal has been maintained, the Committee must once again express its firm expectation that the Sindh High Court’s decision on the management’s appeal will be rendered without further delay and requests the Government to transmit a copy of the judgement once it has been issued. Should the reinstatement order be confirmed, the Committee expects that the Government will ensure the full execution of the ruling and secure the effective reinstatement of the workers in question, 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 once again requests the Government to indicate the steps taken in follow-up to its previous recommendations that his heirs receive adequate compensation. The Committee also expects the Government to keep it informed of the outcome of the five cases regarding claims for compensation before the Compensation Commissioner for which the Government indicated that two are pending cross examination of the applicants and three are at the stage of hearing on objections. Lastly, the Committee requests the Government to keep it duly informed of any amicable settlement reached between the Hotel and the workers as a follow-up to the recommendations of the Tripartite Committee set up by the MOPHRD on their reinstatement.
5. 555. 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 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 notes the complainant’s indication that although the Government previously claimed that the MOPHRD had requested the NIRC to dispose in a speedy manner of the numerous grievance cases before it, there has been no development in this regard, as meetings of the NIRC on the cases were adjourned. It notes that the Government limits itself to indicating that the decision of the Sindh High Court is still awaited and that in April 2018 the MOPHRD once again requested a timely disposal of the cases by the NIRC during a meeting attended by all stakeholders. The Committee also notes that following its meeting of 4 July 2018, the Tripartite Committee set up by the MOPHRD has recommended that the Hotel management takes 37 workers back on job, and in case the management would have a genuine issue it should reach an amicable settlement of the dispute or decide of redundancy measures by ensuring that the workers receive such financial benefits they are entitled to under the labour laws. Under these circumstances, the Committee is bound to express once again its firm expectation that the Sindh High Court’s decision on the matter will be rendered without further delay and that all proceedings pending before the NIRC will be properly and expeditiously dealt with. The Committee firmly expects that the Government will provide detailed information on meaningful development concerning these proceedings or any follow-up to the recommendations of the Tripartite Committee set up by the MOPHRD in this regard.
6. 556. Furthermore, the Committee recalls that it had previously requested the Government to institute without delay an independent inquiry into serious allegations of anti-union harassment and violence submitted to the Federal Tripartite Consultative Committee: (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, Mr 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 notes from the Government’s reply that on 16 April 2018 the MOPHRD constituted a tripartite committee to conduct an independent inquiry into the allegations. The Committee urges the Government to keep it informed of the outcome of the investigation and any follow-up measures thereof.
7. 557. The Committee notes the complainant’s assertion that in December 2015 the Hotel’s unions in Karachi and Lahore decided to establish a national union under the terms of the Industrial Relations Act (2012) which approached the NIRC in March 2017 to issue a certificate of collective bargaining. However, according to the complainant the referendum process for the determination of collective bargaining status had been systematically blocked as the Government had allowed the Hotel management to file a series of objections with the NIRC to delay the process rather than facilitate a swift, fair and efficient process. The Committee also notes information from the Government that, following its meeting of 4 July 2018, the Tripartite Committee set up by the MOPHRD has recommended that the Hotel management recognises and work in harmony with the national union. The Committee wishes to emphasize that one of the main objectives of workers in exercising their right to organize is to bargain collectively their terms and conditions of employment and it is incumbent on the Government to ensure that there is no undue impediment in this regard. Consequently, the Committee urges the Government to keep it informed of the decision of the NIRC concerning the certification request lodged by the Hotel’s national union and of any developments regarding the recognition of the union by the Hotel in accordance with the Tripartite Committee’s recommendations.
8. 558. The Committee takes note of the information provided both by the complainant and the Government on latest initiatives on the part of the Sindh Government to deal specifically with the issues, including meetings between the Hotel management and the union. The Committee however notes with concern the refusal of the Hotel management to attend a number of meetings or to report on progress of voluntary negotiation, hence to fully engage with the union on the outstanding issues in order to find possible solutions. The Committee also notes that at the federal level the MOPHRD set up a Tripartite Committee to conduct an independent inquiry into the issues raised by the complaint which met 4 July 2018 with both parties and made recommendations, among which the recommendation that the Hotel management will act in coordination with Mr Zahoor Awan, General Secretary of the PWF, and Mr Majyd Aziz, President of the EFP, to settle these issues. The Committee notes the Government’s intention to keep it informed of any follow-up to these recommendations. While the Committee acknowledges the Government’s efforts to encourage a peaceful resolution of the outstanding matters between the Hotel management and the union, it must however express its concern about the lack of any resolution to long-standing matters in this case despite the time that has elapsed since the lodging of the complaint in 2013. The Committee expresses once again the firm expectation that the Government will take swift action and will be able to provide detailed information on the effective implementation of its recommendations in the very near future.