Informe provisional - Informe núm. 389, Junio 2019

1. 490. The Committee last examined this case at its October 2018 meeting, when it presented an interim report to the Governing Body [see 387th Report, paras 532–559, approved by the Governing Body at its 334th Session].
2. 491. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) provided additional information in a communication dated 17 December 2018.
3. 492. The Government provided observations in a communication dated 20 February and 7 May 2019.
4. 493. 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. 494. At its October 2018 meeting, the Committee made the following recommendations [see 387th Report, para. 559]:
   • (a) With regard to the situation of the trade union members who benefited from a reinstatement order from the Sindh Appellate Labour Tribunal in January 2013, the Committee requests the Government to indicate whether the Hotel 1 has accepted to negotiate with the remaining workers in line with the recommendations of the Tripartite Committee set up by the MOPHRD and if not, whether the management has maintained its appeal to the Sindh 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 for cross-action 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.
   • (b) The Committee is bound to express once again its firm expectation 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 will be properly and expeditiously dealt with. The Committee firmly expects the Government to 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.
   • (c) The Committee urges the Government to keep it informed of the outcome of the investigation into the serious allegations of anti-union harassment and violence submitted to the Federal Tripartite Consultative Committee, and of any follow-up measures thereof: (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.
   • (d) The Committee urges the Government to keep it informed of the decision of the NIRC concerning the issue of a certificate for collective bargaining requested by the Hotel’s national union and of any developments in the Hotel recognition of the union in accordance with the Tripartite Committee’s recommendations.
   • (e) While the Committee acknowledges the Government’s efforts to encourage a peaceful resolution of 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.

B. The complainant’s additional information

1. 495. In its communication dated 17 December 2018, the complainant refers to the Government’s previous reply in which the Government indicated that it had set up a Tripartite Committee to conduct an independent inquiry into the issues raised by the complaint and that the Tripartite Committee recommended that the management of the Hotel should act in coordination with the General Secretary of the Pakistan Workers’ Federation (PWF) and the President of the Employers’ Federation of Pakistan (EFP) to settle the pending issues, including the situation of Mr Ghulam Mehboob, the General Secretary of the Hotel trade union. The complainant alleges that if the Government’s reply is understood to mean that resolving the situation of the 37 workers or any members or leaders of the Hotel trade union is a matter to be negotiated between the General Secretary of the PWF and the employer representative, it would be a proposal that would deprive the concerned workers of the recognition and representation their trade union has been struggling for since 2001. This suggestion is deeply offensive to the workers and shows a lack of understanding of the meaning of freedom of association by the Government. It would also be inconsistent with the substance of the complaint and the jurisprudence of the ILO and both the complainant and its members in Pakistan would reject such a proposal. The complainant adds that the General Secretary of the PWF is a member of the Federal Tripartite Labour Consultative Committee but the PWF is not in any way a party to the dispute involving the Hotel trade union. The Tripartite Committee’s role, should it become involved, is to promote good faith direct negotiations between the parties to the dispute so as to resolve the many outstanding issues. Any attempt on the part of the Government to arbitrarily impose representation by a federation of which the Hotel trade union is not a member and to eliminate the trade union’s role in negotiating a resolution to the long-standing dispute would be viewed as a further violation of Conventions Nos 87 and 98.

C. The Government’s reply

1. 496. In a communication dated 20 February 2019, the Government provides a reply to the additional information submitted by the complainant. It informs that the intentions of the Government in involving representatives of the PWF and the EFP is to promote good faith and direct negotiations between the parties to the dispute so as to resolve the many outstanding matters. The issues between the Hotel trade union and the management will be settled through negotiations and mutual consent of both parties.
2. 497. In its communication dated 7 May 2019, the Government informs about developments in this case. In particular, it indicates that the Hotel management has maintained its appeal before the Sindh High Court against the reinstatement order of 19 trade unionists issued by the Sindh Appellate Labour Tribunal in January 2013. It also states that the Ministry of Overseas Pakistanis and Human Resource Development (MOPHRD) has requested the National Industrial Relations Commission (NIRC) to obtain details on the case so that it could address the Attorney General and the Registrar of the Sindh High Court to request early disposal of the case through legal channels. Once rendered, the decision of the Court will be implemented effectively and a copy will be provided to the Committee. The Hotel management has also informed that the entire legal dues have already been paid to several employees, that Mr Ghulam Mehboob, General Secretary of the Hotel trade union, and other employees retired and that the management is ready to facilitate the payment of their pension and settle their claims. The Government assures that although the reinstatement order has been challenged before the Sindh High Court, the back benefits have been deposited in the Tribunal in the shape of bank guarantee, in compliance with the Appellate Labour Tribunal’s order, and workers (except those who have attained the age of retirement) receive their monthly salary. Furthermore, a number of issues raised by the union, individuals, as well as cases before the NIRC and the courts, have been mutually resolved through arbitration.
3. 498. The Government further reiterates, with regard to the 65 workers who were allegedly denied access to the workplace in the aftermath of the industrial action in March 2013, that the MOPHRD has requested the NIRC to expedite all pending cases regarding the Hotel trade union and submit a report to the Ministry.
4. 499. As to the serious allegations of anti-union harassment and violence submitted to the Federal Tripartite Consultative Committee for necessary action, the Government states that during a meeting of the Tripartite Committee (constituted by the MOPHRD to conduct an independent inquiry into the allegations), the Hotel management informed of the following:
   • (i) the management believes in unionism and considers that it is not possible to harass a huge number of workers;
   • (ii) the management has nothing to do with the 2013 incidents and no criminal case was filed against any worker;
   • (iii) some of the workers disrupted law and order, as a result of which the police arrested a number of persons for breach of peace, including some Hotel employees but these were later released;
   • (iv) the Hotel management has not taken any disciplinary action either for the strike or for disrupting law and order and not a single person was victimized on account of strike or any other allegations; and
   • (v) the workers involved in these incidents are being paid salaries and benefits regularly.
5. 500. The Government further indicates, with regard to the issue of the certification request lodged by the Hotel’s national union, that the management has challenged the decision of the NIRC on holding elections at national level to determine the collective bargaining agent before the Sindh High Court and the matter is pending adjudication. The MOPHRD has sought details on the case and will take further necessary actions accordingly.
6. 501. Finally, the Government affirms that the Department of Labour in the Sindh Province has arranged tripartite meetings to resolve the pending issues and that the Government has also discussed the matter in the meeting of the Federal Tripartite Consultative Committee held in February 2019. It is expected that the issues between the Hotel and the union will be resolved through social dialogue.

D. The Committee’s conclusions

1. 502. 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 ultimately the Government’s failure to ensure that the Hotel’s union and its members enjoy freedom of association.
2. 503. The Committee notes the concerns expressed by the complainant with regard to the Government’s previous reply as to the parties that should be involved in the negotiations for the resolution of the long-standing issues and observes, in particular, that, according to the complainant, an attempt to arbitrarily impose representation by a workers’ federation of which the Hotel trade union is not a member and the exclusion of the Hotel trade union from the negotiations would amount to violations of Conventions Nos 87 and 98. In this regard, the Committee notes the Government’s assertion that any issues between the Hotel management and the trade union will be settled through discussion and mutual consent of both parties and that the proposed involvement of the EFP and the PWF intends to promote good faith and negotiations among the parties. Recalling that workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 586], the Committee encourages the Government to take the necessary steps to ensure that the Hotel trade union will be able to actively engage in the negotiations with the management in order to find solutions to the long-standing matters in a way that will ensure that the workers concerned are represented by persons freely chosen and elected by them.
3. 504. With regard to to the situation of the trade union members who benefited from a reinstatement order from the Sindh Appellate Labour Tribunal in January 2013 (recommendation (a)), the Committee notes the Government’s indication that the Hotel management maintained its appeal against this order before the Sindh High Court and that the Ministry plans to intervene with the Attorney General and the Registrar in order to request early disposal of the case. The Committee further observes from the information provided that, pending the decision of the Sindh High Court, legal dues were paid to some workers, the concerned trade unionists receive their monthly salary and a number of trade unionists, including the Secretary-General, retired in the meantime but the management is willing to facilitate the payment of their pension and settle their claims. While taking due note of the payment of some benefits to the concerned workers, as well as of the apparent openness of the management to settle their claims, the Committee must once again express deep concern at the time that has elapsed since the Sindh Labour Appellate Tribunal upheld the 2011 ruling of the Sindh Labour Court ordering reinstatement of 21 members of the Hotel’s union, many of whom have since retired, and at the fact that the management’s appeal against this order is still pending. Recalling that justice delayed is justice denied [see Compilation, op. cit., para. 170], the Committee firmly expects 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 judgment 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 (or payment of pension for those who have reached the retirement age) and compensation for lost wages, as well as any damages suffered. Further regretting that the Government does not provide any information on the case of the union member who died while awaiting the enforcement of the reinstatement judgment, the Committee requests once again the Government to inform of the steps taken in follow-up to its previous recommendations that his heirs receive adequate compensation and to provide updated and concrete information in this regard. 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 had previously indicated that two are pending for cross-action of the applicants and three are at the stage of hearing on objections.
4. 505. As to the proceedings before the Sindh High Court and the NIRC concerning the workers who were allegedly denied access to the workplace after the events of March 2013 (recommendation (b)), the Committee regrets that the Government is unable to report any progress in this regard and simply reiterates that it has requested the NIRC to expedite all pending cases regarding the Hotel trade union. The Committee observes that the Government had reported similar action in the past, without it resulting in any tangible developments. In these circumstances and in view of the lengthy proceedings, the Committee must once again express its firm expectation that the Sindh High Court’s decision will be rendered without further delay and that all proceedings pending before the NIRC will be properly and expeditiously dealt with. It further expects the Government to 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.
5. 506. Concerning the serious allegations of anti-union harassment and violence submitted to the Federal Tripartite Consultative Committee for necessary action (recommendation (c)), the Committee notes the Government’s indication that, during a meeting of the Tripartite Committee (constituted by the MOPHRD to conduct an independent inquiry into these allegations), the Hotel management stated that it did not take any disciplinary action, did not file criminal charges and did not victimize in any other way workers involved in the 2013 incidents, who continue to be paid salaries and other benefits but some Hotel employees who disrupted law and order, were indeed arrested by the police and later released. While duly noting this information, the Committee recalls that the Tripartite Committee was precisely tasked with examining these specific allegations and, therefore, requests the Government to clarify whether it has concluded its examination of the following allegations of anti-union harassment and violence: harassment of union members; 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 the subsequent brief arrest of union officers and members and filing of criminal charges against 47 of them. The Committee requests the Government to provide concrete updated information on the outcome of the investigations and of any follow-up measures thereof and expects that the Government will be able to provide such information without further delay.
6. 507. With regard to the certification request lodged by the Hotel’s national union (recommendation (d)), the Committee notes from the information provided by the Government that the Hotel management has challenged the decision of the NIRC on holding elections at the national level to determine the collective bargaining agent before the Sindh High Court. The Committee recalls from its previous examination of the case that the Tripartite Committee established by the MOPHRD to look into the issues raised by the complainant recommended that the Hotel management recognize and work in harmony with the national union. Emphasizing once again 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 that it is incumbent on the Government to ensure that there is no undue impediment in this regard, the Committee trusts that the decision of the Sindh High Court will be rendered without delay and urges the Government to keep it informed of any developments regarding the recognition of the union by the Hotel, in accordance with the Tripartite Committee’s recommendations.
7. 508. Finally, noting the Government’s indication that tripartite meetings have been arranged by the Sindh Department of Labour to resolve the pending issues and that the case was also discussed at the meeting of the Federal Tripartite Consultative Committee and observing the Government’s assertion that a number of issues have been mutually settled through arbitration and that others will be resolved through social dialogue, the Committee trusts that any remaining issues in this case will indeed be rapidly resolved through the appropriate mechanisms, including with the participation of the concerned union, and 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. It reminds the Government that ILO technical assistance is available to it should it so desire.