Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 403, Junio 2023

1. 357. The Committee last examined this case at its March 2021 meeting, when it presented an interim report to the Governing Body [see 393rd Report, paras 581–599, approved by the Governing Body at its 341st Session]. 
2. 358. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) provided additional information in communications dated 21 April, 12 June and 21 October 2021, and 8 March and 1 December 2022.
3. 359. The Government of Pakistan provided its observations in communications dated 17 May 2022 and 13 February 2023.
4. 360. 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. 361. At its March 2021 meeting, the Committee made the following recommendations [see 393rd Report, para. 599]:
   • (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 is bound to reiterate 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 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. In this regard, noting from the information provided that the case of Mr Ghulam Mehboob, General Secretary of the Hotel trade union, who is among the officers who benefited from the reinstatement order and is now retired, was decided by Court and that his legal dues were being calculated and shall be paid shortly, the Committee requests the Government to keep it informed of any development in this regard. It also requests the Government to provide detailed information on the steps taken to implement its recommendation that the heirs of the union member who died while awaiting the enforcement of the reinstatement judgment receive adequate compensation. With regard to the five cases regarding claims for compensation pending before the Compensation Commissioner of the Sindh Labour Department, the Committee requests the Government to keep it informed of the outcome of these cases.
   • (b) In view of the lengthy proceedings still pending concerning the workers who were allegedly denied access to the workplace after the events of March 2013, the Committee must express 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.
   • (c) The Committee requests the Government to clarify whether the Tripartite Committee established by the MOPHRD in April 2018 to conduct an independent inquiry into the allegations of anti-union harassment and violence has concluded its examination of the following allegations: 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 without further delay concrete updated information on the outcome of the investigations and of any follow-up measures thereto.
   • (d) The Committee must express its firm expectation that the decision of the Sindh High Court on the Hotel management’s appeal challenging the decision of the NIRC on holding elections at the national level to determine the collective bargaining agent will be rendered without delay and urges the Government to keep it informed of any developments regarding the recognition of the national union by the Hotel, in accordance with the Tripartite Committee’s recommendations.
   • (e) The Committee encourages the Government to pursue its effort to facilitate the engagement of the parties to find solutions to the pending matters. In view of 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 report meaningful progress regarding the outstanding matter of this case.

B. The complainant’s additional information

1. 362. In its communications dated 21 April, 12 June and 21 October 2021, and 8 March and 1 December 2022, the complainant provides information on the follow-up given by the Government to the recommendations of the Committee.
2. 363. As regards 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 complainant informs that a meeting of the tripartite committee established by the Ministry of Overseas Pakistanis and Human Resource Development (MOPHRD) was held on 2 August 2022 to discuss the present case and in which the National Labour Union representative was able to explain in detail the pending issues. According to the complainant, while there was no follow-up meeting of this Committee, the Pearl Continental Hotel Karachi (hereinafter “the hotel”) paid the dues of Mr Ghulam Mehboob, General Secretary of the hotel trade union, a few days after the meeting.
3. 364. With respect to the workers who were allegedly denied access to the workplace after the events of March 2013 (recommendation (b)), the complainant indicates that, as of 1 December 2022, the remaining three workers are still refused access to the hotel premises due to their role in the committee of the hotel’s national union.
4. 365. Regarding the holding of elections at the national level to determine the collective bargaining agent (recommendation (d)), the complainant informs that on 27 April 2021, the Sindh High Court dismissed the hotel’s appeal challenging the registration of the hotel’s national union. The latter therefore requested the National Industrial Relations Commission (NIRC) to hold a national referendum (recognition ballot); the NIRC then appointed an authorized officer to commence the process on 15 July 2021. The hotel filed a petition against the NIRC’s decision with the Islamabad High Court, which rejected the petition on 6 July 2021. However, on 29 August 2021, the hotel challenged that ruling before the Supreme Court. According to the complainant, in order to undermine and suspend the referendum proceedings, the hotel and an opposing union filed additional petitions on various issues before the NIRC and the Islamabad, Lahore and Karachi High Courts. However, these petitions were ultimately dismissed and the Islamabad High Court decided on 12 September 2022 that a referendum should be held within 15 days. The referendum was finally held on 14 October 2022 at all hotels, namely Karachi, Lahore, Rawalpindi, Bhurban, Peshawar and the hotel Head Office, but the NIRC did not announce the result or issue the collective bargaining agent certificate to the winning trade union by order of the Supreme Court, which has not yet ruled on a civil petition for leave to appeal (application for the right to appeal) filed by the hotel. Hence, there is no recognized union for collective bargaining in the hotel. The complainant states that a hearing date has not yet been announced by the Supreme Court and it is likely that the hotel will attempt to delay the proceedings. The complainant urges the Government, through the NIRC, to request the Supreme Court to make an early hearing of the case and decide as soon as possible, so to enable workers to elect their representatives for collective bargaining.

C. The Government’s reply

1. 366. In communications dated 17 May 2022 and 13 February 2023, the Government provides documented information about developments in the present case, including a reply to the additional information submitted by the complainant. At the outset, the Government recalls that the hotel is a chain owned, operated and franchised by a national company engaged in the hotel business, and the case was lodged on behalf of the hotel union.
2. 367. With regard to its previous recommendation (a) whereby the Committee expected that the courts would reach a final decision on the situation of the trade union members who benefited from a reinstatement order from the Sindh Appellate Labour Tribunal back in 2013, the Government indicates that although pending miscellaneous applications filed by the union members have been dismissed by the court (NIRC Karachi Branch) vide order dated 17 September 2021, an out-of-court settlement, mutually agreed by both parties, has been made of all cases pending before the Compensation Commissioner of the Sindh Labour Department. The Government specifies that the payments in respect of the deceased workers have been made to the Commissioner of Workmen Compensation. Finally, the Government provides documented attestations of the payment of final dues to litigant workers who reached the age of retirement, including Mr Ghulam Mehboob – the General Secretary of the hotel trade union, Mr Muhammad Yaseen, Mr Mumtaz Khan, Mr Muhammad Zarif, Mr Quresh Khan, Mr Bashir Hussain and Mr Tauqeer Ul Hassan. According to the Government, all cases have now been settled amicably and there is no pending case before court (recommendation (b)).
3. 368. Concerning the Committee’s recommendation (c) requesting whether the tripartite committee established by the MOPHRD to conduct an independent inquiry into the allegations of anti-union harassment and violence has concluded its examination, the Government asserts that the out-of-court settlement between the hotel and the workers has ended all pending matters in the present case.
4. 369. With regard to recommendation (d) whereby the Committee expressed its firm expectation of a final decision by the Sindh High Court on the hotel’s appeal challenging the decision of the NIRC to hold elections at the national level to determine the collective bargaining agent, the Government informs that the proceedings of a national union referendum under the auspices of the NIRC Islamabad were challenged by the hotel before the Islamabad High Court in a writ petition dated 16 February 2022 barring the NIRC from proceeding with the referendum until the conclusion of the writ petition. The court dismissed the writ petition on 12 September 2022. Accordingly, the NIRC resumed the proceedings and set the election date on 14 October 2022. The election was held successfully on that date. The Government indicates that the official result and the collective bargaining agent certificate have not yet been issued by the NIRC Islamabad due to the restraining order of 14 October 2022 from the Supreme Court of Pakistan seized by a civil petition for leave to appeal (No. 5094/2021). According to the Government, as soon as the final order is received from the Supreme Court in the corresponding case, the NIRC will issue the collective bargaining agent certificate. In the meantime, the Government indicates that, according to the hotel, local unions are operating in the establishment and a collective bargaining agreement was signed with the union named Pearl Continental Hotel Workers Union Karachi in 2021 whereby workers were provided with benefits including a raise in salary and allowances.
5. 370. The Government indicates that with the efforts of all stakeholders, positive developments have been attained. All cases of reimbursement and compensation have been resolved amicably and the referendum to determine the collective bargaining agent that had been pending has been held successfully to the satisfaction of both the consenting unions (the PC Hotel National Labour Union and the PC Hotel Staff Union). Consequently, on account of these positive developments the Government requests the Committee to close the present case.

C. The Committee’s conclusions

1. 371. 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 a hotel in Karachi in the Sindh Province, and ultimately the failure for many years to organize elections in the establishment to designate the collective bargaining agent, hence preventing the workers from fully enjoying their freedom of association and collective bargaining rights.
2. 372. 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 (these dismissals were the subject of Case No. 2169 examined by the Committee, the predecessor to this case concerning the same hotel [see 331st Report, June 2003]), the Committee notes the Government’s indication that despite the fact that the pending applications filed by the union members have been dismissed by court, an out-of-court settlement, mutually agreed by the parties, has been made in respect of all cases pending before the Compensation Commissioner of the Sindh Labour Department. The hotel made payment of final dues to litigant workers who reached the retirement age. The Committee notes from documents provided by the Government that Mr Ghulam Mehboob, General Secretary of the hotel trade union, is among the officers who benefited from the payment of pension. The Committee notes that the complainant also indicates that the hotel paid the dues to Mr Mehboob shortly after a meeting of the tripartite committee established by the MOPHRD held in August 2022 to discuss the case. The hotel also made payment to the Commissioner of Workmen Compensation in respect of the deceased. Therefore, according to the Government, all cases have now been settled amicably and there is no pending claim before court. The Committee welcomes the report of the amicable settlement of all claims of anti-union dismissal in this case.
3. 373. Furthermore, the Committee notes the complainant’s indication that the three workers who were denied access to the workplace after the events of March 2013, are still denied access to the hotel premises due to their role in the committee of the hotel national union. The Committee understands from the information provided previously by the complainant that while these workers are not permitted to resume work, the hotel does pay their salaries and benefits. The Committee does not intend to examine the working arrangements concerning the three workers, which is the responsibility of the hotel insofar as it complies with national laws and regulations on non-discrimination in employment and freedom of association. The Committee has drawn the attention of governments to the principle that workers’ representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to workplaces. If necessary, workers’ organizations and employers could reach agreements so that access to workplaces, during and outside working hours, can be granted to workers organizations without impairing the functioning of the establishment or service. Governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization. [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1589, 1599 and 1590.] The Committee trusts that the Government will take the necessary measures to ensure that the hotel allows access to those trade union representatives concerned to carry out their functions without impairing the functioning of the establishment.
4. 374. With regard to the certification request lodged by the hotel’s national union in March 2017 and the choice by the hotel to challenge the decision of the NIRC on holding elections at national level to determine the collective bargaining agent, the Committee recalls that it previously noted with regret the overly lengthy proceedings that were undoubtedly detrimental to the conduct of sound labour relations in the hotel and observed that initiating collective bargaining in the hotel remained a daunting process. The Committee also noted the recommendation of the tripartite committee established by the MOPHRD that the hotel recognize and work in harmony with the national union. The Committee notes the Government indication that the NIRC Islamabad commenced proceedings of a national union referendum, but the hotel challenged the decision before the Islamabad High Court in a writ petition dated 16 February 2022 barring the NIRC from proceeding with the referendum until the conclusion of the writ petition. Following the dismissal of the writ petition in September 2022, the NIRC resumed the proceedings and set the election date for 14 October 2022. While the election was held successfully, the official result and the collective bargaining agent certificate have not yet been issued by the NIRC Islamabad due to a restraining order of 14 October 2022 from the Supreme Court of Pakistan following the filing of a civil petition for leave to appeal filed by the enterprise (No. 5094/2021). According to the Government, as soon as the final order is received from the Supreme Court in the corresponding case, the NIRC will issue the collective bargaining agent certificate. In addition, the Committee notes that the complainant expressed its concern that the hotel might attempt to delay the proceedings for the certification and that it calls for an early hearing of the case, so as to enable workers to choose their representative union. Regretting the lengthy time that has elapsed since the national union has sought collective bargaining recognition (March 2017), the Committee hopes that the Supreme Court will render its decision without delay so that the NIRC may declare the results of the referendum and issue the collective bargaining agent certificate. The Committee requests the Government to keep it informed of any development in this regard.
5. 375. While regretting that the matter of collective bargaining agent recognition still remains unresolved, the Committee welcomes the tangible progress made towards the resolution of a number of other long-standing matters between the hotel and the union. The Committee acknowledges the valuable role of the tripartite committee set up by the MOPHRD to facilitate the engagement of the parties in this regard and expects the Government to provide the remaining information without delay, in order to enable it to close this case.