Informe definitivo - Informe núm. 407, Junio 2024

1. 312. The complaint is contained in a communication dated 17 August 2022 from Building and Wood Workers’ International (BWI), the Pakistan Workers’ Federation (PWF), and the Pakistan Federation of Building and Wood Workers (PFBWW). The PFBWW sent additional information in a communication dated 12 April 2024.
2. 313. The Government forwarded its observations in a communication dated 16 January and 22 April 2024.
3. 314. 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. The complainants’ allegations

1. 315. In a communication dated 17 August 2022, the BWI, the PWF and the PFBWW denounce a five-year struggle for workers employed at the Karot Hydropower Plant in the Rawalpindi District, Province of Punjab, to exercise their trade union rights. The Karot Hydropower Plant was a project financed by the International Finance Corporation (IFC), the Silk Road Fund, the Export-Import Bank of China and China Development Bank. The construction work at the project completed in 2022 and the hydropower plant has started generating electricity. According to the complainants, the workers formed the Awami Labour Union (ALU) in May 2017 in response to numerous violations of the labour law during the construction work period, including the failure to provide valid employment contracts, the lack of overtime pay, and violations of occupational health and safety rules. However, the ALU was only registered a year later by the Registrar of the Labour Department when compelled to do so by order of the Rawalpindi Labour Court in May 2018. The complainants allege that, despite multiple attempts by the ALU to engage with the management of the company on labour law violations, it took the intervention of the IFC for any meetings to start. While there were some positive changes concerning some of the union’s complaints, violations of trade union rights remained, including difficulties for the union leaders to access the worksite, making it effectively impossible for the union to access the workplace and communicate with the union members, dismissal of 200 union members without justification (when the management of the Karot hydropower project terminated more than 2,400 workers in December 2021, during the COVID 19 pandemic, under the guise of “termination of non-essential workers”, without paying their termination benefits or annual leave dues, which constitutes a gross violation of the labour law of Punjab), and interference in trade union activities by the employer through its support to the creation of a parallel, management dominated union.
2. 316. With regard to the registration of the ALU, the complainants specify that, in its decision of 29 May 2018, the Rawalpindi Labour Court found that the Registrar of the Labour Department violated the labour law when it refused to register the ALU. The Court found the Registrar’s motives – that the ALU could not be registered in Rawalpindi because the Karot hydropower project (and the union membership) spanned multiple districts – to be in contravention of the Punjab Industrial Relations Act (PIRA). Furthermore, the Court found that the ALU fulfilled all the requirements for registration and nothing in the PIRA prohibited the Registrar of the Labour Department to register the union just because of jurisdiction. The Court found that “the Law does not demand that at the time of registration of any trade or labour union permanent residents of its members should be looked into or has any weight. Permanent residents of members of any Labour Union has no value for the purpose of Registration of Union.” The Court further held “it is fundamental rights of employees to frame the Labour Union just to protect their lawful rights and such right could not be withheld merely on the ground of lack of jurisdiction appellant could not be restraint from the Registration of their Labour Union which is their fundamental right as guaranteed by the Constitution of the Islamic Republic of Pakistan”. On 9 June 2018, the Office of the Registrar of Trade Unions, following the judgment, officially registered the ALU, China Three Gorges Corporation Karot Power Company Private Limited (KPCL) (hereafter “the company”). The ALU affiliated with the PFBWW.
3. 317. According to the complainants, following the registration, the company committed several violations of the labour law and international labour standards. The ALU union members and leaders were targeted and harassed with threats of termination and fabrication of legal cases against them. Six months after registration, workers were still not allowed to undertake any union activities at the worksite or even in residential areas. Neither the general secretaries nor the presidents of the ALU or the PFBWW were allowed on the worksite to meet with union members, conduct legitimate union activities or meet with the management to discuss grievances.
4. 318. The PFBWW, through the BWI, requested the IFC to intervene to compel the company to meet with the ALU to address the labour law violations. After the IFC’s intermediation, several meetings were held between the company, the ALU and the PWF. During a meeting held in March 2019, the company disregarded the charter of demands and instead demanded that the ALU provide the approved list of office bearers and a complete list of union members. The ALU representatives replied that all names and paperwork had been supplied to the Labour Department, and the Registrar of trade unions had already officially informed the company, with the legal registration certificate and the list of union office bearers. The ALU replied that it would not supply additional information as members had been threatened to resign from the union which is an unfair labour practice on the part of the company according to the law. According to the complainants, the company asserted that it would not negotiate on workers’ demands until such lists were provided and ended the meeting with no conclusion. The complainants denounce the intention of the company to use the union to obtain information that would enable it to identify unionized workers and target them.
5. 319. The complainants report that following other meetings between the company’s representatives, the ALU and the PWF, incremental changes were made; however, violations of fundamental trade union rights persisted. In particular, the complainants allege that ALU and PFBWW representatives were unable to freely enter the premises and the heavy military presence on the worksite created an environment of intimidation. If meetings were arranged, security protocols were so lengthy and cumbersome that it took hours to clear before a meeting could be held. This difficulty to access union members and workers was still a reality two years later, as the ALU President was still required to request permission two days prior to be able to enter the worksite at all. This denial of access to the company worksite for union leadership and organizers, and the cumbersome security measures and prior notice requirements are serious violations of freedom of association. In its latest communication of April 2024, the PFBWW indicates that it endeavours to maintain, via the ALU, regular contact with the workers at the Karot Hydropower Plant, as ALU’s President and other union officials are still working on the site.
6. 320. Furthermore, the complainants allege serious interference by the company. Two years after it was formed and over a year after it was formally registered, when the ALU reiterated its need to continue with the collective bargaining process with the company, it was informed that a new union, named Social Hydro Labour Union (SHLU), had been formed and was registered only a week after its paperwork had been sent to the Registrar of trade unions. According to the ALU, no workers at the worksite knew of this other union. The swiftness of the registration of the SHLU and its rapid recognition by the company led the ALU to have real doubts as to the independence and legitimacy of the SHLU. As a result, in December 2019 the ALU sent a letter to the Registrar of trade unions questioning the legitimacy of the SHLU and demanding its de registration. In addition, the complainants assert that the company directly facilitated meetings between the IFC and the SHLU officials during an IFC investigation in Pakistan in April 2022, including on the use of company resources for the benefit of the SHLU. The complainants regret that the company had not ensured such opportunities for the incumbent union, the ALU and the PFBWW. In their view, the fact that the company had facilitated access and engagement of the SHLU with the workforce and the IFC investigators – while not inviting the ALU – is a clear indication of favouritism.
7. 321. The complainants further denounce the Government’s violation of the right to collective bargaining. The complainants recall that the ALU has submitted paperwork to the authorities demonstrating that it meets the threshold to be the bargaining agent for the workers in the company – the union had submitted evidence of 1,272 members, easily exceeding the one third of the total number of workers necessary under the law to be deemed the collective bargaining agent. As such, the authorities should obtain the company’s recognition of the ALU for collective bargaining purposes. However, the company refused to recognize the ALU as the collective bargaining agent and the sole union on the worksite at that time. In its latest communication, the PFBWW informs that since the construction work at the project was completed in 2022 and work at the site is over, there is no need to secure recognition as collective bargaining agent or to hold the referendum anymore.
8. 322. The complainants consider that the persistent interference by the company and subsequent lack of action by the Government in ensuring workers’ fundamental trade union rights is of serious concern. Workers have been trying to ensure labour rights and protections as guaranteed under the labour law and under Pakistan’s international labour obligations for five years. They have tried various paths including the local court and the IFC grievance process to no avail. The complainants demand that the Government review and enforce its labour laws, ensure that all dismissals shown to be in violation of freedom of association in this case are reversed, and ensure that recognition and good faith negotiations are conducted between the ALU and the company. Furthermore, the Government should ensure that no further intimidation, harassment or interference take place at the company worksite.
9. 323. The complainants are of the view that, while the Karot hydropower project concluded its construction work in June 2022 and has commenced its commercial operation, these issues will continue as there are other projects approved by the IFC in the area with the same employer and financiers, thus the violations of trade union rights will likely be replicated. Therefore, the Committee should intervene as a matter of urgency in this case to provide workers with a remedy and to prevent the repetition of similar violations on future projects by the same actors.

B. The Government’s reply

1. 324. In its communications dated 16 January and 22 April 2024, the Government provided the following information: The Karot Hydropower Plant project falls under the jurisdiction of the Directorate General of Labour Welfare, operating within the Labour and Human Resource Department of the Government of Punjab. The Registrar of trade unions, functioning under the said Directorate, has communicated that no complaints regarding interference, harassment, workplace access, or management violations under national law have been received from the trade unions, namely the ALU and the SHLU, at the Registrar’s office in Rawalpindi.
2. 325. With regard to the allegations related to collective bargaining, the Government forwards the indication from the Registrar of trade unions that the ALU was formally registered on 9 June 2018 after it fulfilled all legal requirements mandated by the PIRA. The office bearers of the ALU applied for a collective bargaining agent certificate on 16 October 2018. However, concurrently, an application for the registration of another trade union, the SHLU, was submitted to the Registrar in the same company. The SHLU was registered on 30 August 2019. The registration of the second union rendered the application of the ALU for the issuance of a collective bargaining agent certificate ineffective. The SHLU applied for a secret ballot to determine the collective bargaining agent in the company in 2019. The referendum process commenced on 20 December 2019 and continued until 1 August 2022. Both unions participated in the meetings for the referendum proceedings. The Registrar had initially scheduled the referendum for 9 August 2022, but the company requested a postponement to 18 August 2022, citing the need for the submission of the cost for the secret ballot. Despite the accepted request for postponement, the company failed to submit the required cost, leading to the non-execution of the referendum. On three occasions, the Registrar of trade unions called upon the office bearers of both trade unions and the management of the company to attend meetings for the referendum and collective bargaining agent determination through letters dated 18 August, 1 September and 31 October 2023. However, none of the unions or the company attended the scheduled meetings. Considering the above, it appears to the Government that neither the office bearers of the trade unions nor the management of the establishment are inclined towards conducting a referendum through a secret ballot for the determination of a collective bargaining agent.

C. The Committee’s conclusions

1. 326. The Committee notes that in this case, the complainants – namely Building and Wood Workers’ International (BWI), the Pakistan Workers’ Federation (PWF), and the Pakistan Federation of Building and Wood Workers (PFBWW) – denounce allege serious violations of trade union rights of an affiliate organization, the Awami Labour Union (ALU), including difficulties for a trade union to get its registration until a court order, cumbersome security measures and prior notice requirements making it effectively impossible for the union representatives to access the workplace and communicate with the union members, the harassment of union leaders and members, the termination work of 200 union members during a mass collective dismissal without justification, and acts of interference by the employer.
2. 327. In their communications dated 17 August 2022 and 12 April 2024, the BWI, the PWF and the PFBWW denounce the struggle of allege that workers employed at the Karot Hydropower Plant in the Rawalpindi District, Province of Punjab, have struggled to exercise their trade union rights since 2017. The Committee notes the allegation that the workers formed the ALU in May 2017 during the construction work in response to numerous labour violations, including the failure to provide valid employment contracts, the lack of overtime pay, and violations of occupational health and safety rules. However, the ALU was only registered a year later by the Registrar of the Labour Department following an order of the Rawalpindi Labour Court in May 2018. The Committee notes the indication that, in its decision the Rawalpindi Labour Court found that the Registrar of trade unions violated the Punjab Industrial Relations Act (PIRA) when it refused to register the ALU. The Committee notes that the Office of the Registrar of trade unions, following the judgment, officially registered the ALU on 9 June 2018. While it understands that the process for registering the ALU complied with the requirements of the PIRA (section 9) concerning recourse to the labour courts following a refusal by the administration to register a union, and the recourse eventually resulted in the proper registration of the union, the Committee regrets the time taken to register the union, which probably had an impact on the ability of its representatives to carry out their activities in defence of their members’ interests during a year.
3. 328. The Committee notes the allegations that, following the registration, the company committed several violations of the labour law and international labour standards relating to the exercise of trade union rights. In particular, the Committee notes with concern the allegation that ALU union members and leaders were targeted and harassed with threats of termination and fabrication of legal cases against them. It notes that the BWI and the PFBWW filed a complaint to the Office of the Compliance Advisor Ombudsman of the IFC in relation to the company’s compliance with the IFC’s Performance Standard 2 on Labour and Working Conditions (attached to the present complaint), denouncing the mass collective dismissal of 2,410 workers, including 200 union members, in December 2021 without justification. The Committee notes the allegations that the 2,410 workers were forcibly asked to leave the worksite and take all their personal belongings without any information about the future of the project. This termination was undertaken during the COVID-19 pandemic allegedly under the guise of termination of employment of non-essential workers. Most of the workers were already working for two to three years and were not paid termination benefits or dues, in gross violation to the labour law of Punjab. The Committee recalls that it is not within the Committee’s purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference. However, the Committee also recalls that the application of staff reduction programmes must not be used to carry out acts of anti-union discrimination. [see Compilation of decisions of the Committee on Freedom of Association, Sixth edition, 2018, paras 1112 and 1114]. The Committee observes from the information provided by the complainants that there is no specific allegation of anti-union discrimination during the mass collective dismissal which impacted more than 2,400 workers of the project in December 2021. Nor has it been provided with any information about any appeals being made to the court for anti-union dismissals. In these circumstances, the Committee will not pursue the examination of this aspect of the case.
4. 329. The Committee notes, however, with concern the allegation that, six months after registration, workers were still not allowed to undertake any union activities on the worksite or even in residential areas. In particular, ALU and PFBWW representatives allege that they were unable to freely enter the premises and the heavy military presence on the worksite created an environment of intimidation. If meetings were arranged, security protocols allegedly were so lengthy and cumbersome that it took hours to clear before a meeting could be held. The Committee also notes the indication that, following the commencement of the commercial work of the plant in June 2022, the PFBWW and the ALU still endeavour to maintain regular contact with the workers at the Karot Hydropower Plant, as ALU’s President and other union officials are still working on the site. At the same time, the Committee further observes that the ALU is not seeking any more the collective bargaining status in the undertaking as the construction work ended in 2022.
5. 330. In this regard, t The Committee recalls its view that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function. In addition, trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking. The granting of such facilities should not impair the efficient operation of the undertaking concerned. 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 [see Compilation, paras 1591, 1593 and 1599]. Therefore, the Committee requests the Government to take all necessary steps to ensure that access of ALU and PFBWW representatives to the worksite is facilitated while taking into account the security protocols that may be necessary in view of the strategic nature of the undertaking and the need to maintain its efficient operation. In the future, Tthe Committee requests expects the Government to encourage dialogue between the management of the plant and the trade unions concerned to agree upon the parameters for access to the workplace, during and outside working hours to facilitate access of representatives while taking into account the security protocols that may be necessary in view of the strategic nature of the undertaking and the need to maintain its efficient operation.
6. 331. The Committee notes the indication that, despite multiple attempts after its registration, the ALU was unable to engage with the management of the company on its demands. The PFBWW, through the BWI, requested the IFC to intervene to compel the company to meet with the ALU to address the alleged labour law violations and that after the IFC’s intermediation, several meetings were held between the company, the ALU and the PWF. The company allegedly refused to address any issue unless the ALU provide it with the list of office bearers and a complete list of union members. However, the ALU representatives refused to supply any information on its members and denounced the apparent intention of the company, through its demand, to identify unionized workers and target them. In this regard, the Committee recalls that the list of members of a trade union given for registration purposes should be kept confidential in order to prevent acts of trade union discrimination [see Compilation, para. 434].
7. 332. Furthermore, the Committee notes the allegation of further serious acts of interference by the company. Two years after it was formed and over a year after it was formally registered, the ALU was informed that a new union, named Social Hydro Labour Union (SHLU) had been formed and was registered only a week after its paperwork had been sent to the Registrar of trade unions. According to the ALU, no workers at the worksite knew of this other union. The swiftness of the registration of the SHLU and its rapid recognition by the company led the ALU to have real doubts as to the independence and legitimacy of the SHLU. In December 2019, the ALU sent a letter to the Registrar of trade unions questioning the legitimacy of the SHLU and demanding its de-registration. In addition, the complainants assert that the company directly facilitated meetings between the IFC and SHLU officials during an IFC investigation in Pakistan in April 2022, and recall that the company did not ensure that the incumbent union, the ALU and the PFBWW had such opportunities. In the complainants’ view, the fact that the company had facilitated access and engagement of the SHLU with the workforce and the IFC investigators – while not inviting the ALU – is a clear indication of favouritism. The Committee recalls that extending an invitation to participate in the meetings with the enterprise management to one organization and not to another, may be an informal way of showing favouritism to one organization and thereby influencing the trade union membership of workers [see Compilation, para. 1204].
8. 333. The Committee further notes the allegations that in 2018 the ALU submitted paperwork to the authorities demonstrating that it met the threshold to be the bargaining agent for the workers in the company – the union had submitted evidence of 1,272 members (out of 3,000 workers), easily exceeding the one third of the total number of workers necessary under the law to be deemed the collective bargaining agent. The complainants denounce the inability of the authorities to obtain the company’s recognition for the ALU for collective bargaining purposes despite these figures at the time when it was the sole union in the establishment.
9. 334. The Committee notes the Government’s indication that the office bearers of the ALU applied for a collective bargaining agent certificate on 16 October 2018. However, concurrently, an application for the registration of the SHLU was submitted to the Registrar in the company. The registration of the SHLU on 30 August 2019 rendered the application of the ALU for the issuance of a collective bargaining agent certificate ineffective. In addition, the SHLU’s application for a secret ballot to determine the collective bargaining agent gave rise to a referendum process that commenced on 20 December 2019 and continued until 1 August 2022 with the participation of both unions in the meetings for the referendum proceedings. According to the Government, the Registrar had initially scheduled the referendum for 9 August 2022, but the company requested a postponement to 18 August 2022, citing the need for submission of the cost for the secret ballot. Despite acceptance for postponement, the company failed to submit the required cost, leading to the non-execution of the referendum. The Committee observes that during this long process, according to the information provided by the complainants and not contested by the Government, the company engaged in a massive collective dismissal of more than two thirds of the 3,000 workers of the project (December 2021), before the commencement of the commercial operation of the plant (June 2022) with a much-reduced workforce.
10. 335. According to the Government, the Registrar of trade unions called upon the office bearers of both trade unions and the management of the company to attend meetings for the referendum and collective bargaining agent determination on three occasions through letters dated 18 August, 1 September and 31 October 2023; however, none of the unions or the company attended the scheduled meetings. Considering the above, the Government asserts that neither the office bearers of the trade unions nor the management of the establishment are inclined towards conducting a referendum through a secret ballot for the determination of a collective bargaining agent. In its communication of April 2024, the PFBWW explains that since the construction work at the project site has been over since 2022, it is no longer necessary to secure recognition as collective bargaining agent or to hold the referendum.
11. 336. The Committee must note with regret the abnormally long time of the procedure for the determination of the collective bargaining agent in the present case, which finally became moot not having ever been able to be held. It also notes with regret that this prevented union members and workers at the worksite from benefiting from collective negotiations on their employment and working conditions. The Committee further observes that the ALU is not seeking anymore the collective bargaining agent status in the undertaking as the construction work ended in 2022. In these circumstances, recalling the time limits provided under the PIRA for the determination of a collective bargaining agent by secret ballot (section 24(2) and (3) provides that, upon the application made by a union, the Registrar should hold the secret ballot within 15 days and up to 30 days in large establishments), the Committee expects that the Government will ensure that these time limits are fully respected in the future for the application for the determination of the collective bargaining agent in any undertaking.
12. 337. The Committee duly notes the complainants’ argument that the infringement of trade union rights could replicate in other projects in the area with the same employer and financiers unless the Committee intervenes in the present case to provide workers with a remedy and to prevent the repetition of similar violations on future projects by the same actors. Bearing in mind the above considerations, the Committee draws the Government’s attention to the need to ensure that trade union rights are fully respected in any similar undertaking in the future.