Rapport intérimaire - Rapport No. 388, Mars 2019

1. 184. The Committee last examined this case at its March 2018 meeting, when it presented an interim report to the Governing Body [see 384th Report, paras 146–169, approved by the Governing Body at its 332nd Session].
2. 185. In a communication dated 18 February 2019, the International Trade Union Confederation (ITUC) made new allegations in relation to this case.
3. 186. The Government sent its observations in a communication dated 1 October 2018.
4. 187. Bangladesh has ratified 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. 188. At its March 2018 meeting, the Committee made the following recommendations [see 384th Report, para. 169]:
   • (a) The Committee requests the Government to take the necessary measures to institute an independent inquiry into the serious allegations of death threats, physical abuse and beatings while in custody and ensure that their perpetrators are held accountable and the persons concerned adequately compensated for any damage suffered, so as to avoid occurrence of such grievous acts in the future. The Committee invites the complainants to provide any further additional information to the relevant national authorities so that they can proceed to an investigation in full knowledge of the facts. The Committee further requests the Government to take the necessary measures to ensure that all pending cases against trade unionists for their alleged involvement in the Ashulia strike, whether filed by the police, garment factories or other private entities, are concluded without delay and to provide detailed information as to the number of cases, the exact charges retained and their outcome. The Committee requests the Government to keep it informed of any developments in the above matters and trusts that all trade unionists imprisoned or detained after the Ashulia strike have been released.
   • (b) The Committee urges the Government to give the necessary instructions and provide mandatory comprehensive training and awareness-raising activities to ensure that any form of intimidation and harassment of trade unionists and activists by the police ceases immediately, that all persons affected can safely and without fear of repression return to their homes and places of work and that incidents of intimidation and harassment by the police are effectively prevented in the future. The Committee further requests the Government to take the necessary measures to initiate an independent inquiry into all alleged instances of intimidation and harassment presented in the complaint in order to ensure that the perpetrators are held accountable and the concerned workers receive adequate compensation for any damages suffered, and to inform it of any developments in this regard.
   • (c) The Committee requests the Government to take the necessary measures to ensure that all trade unions and workers’ organizations’ offices mentioned in the complaint are able to operate freely and without fear of intimidation and that any confiscated material belonging to these entities is fully returned. In view of the severity and repeated nature of the alleged interference in trade union activities by the police, including forced cancellation of a training activity supported by the ILO, the Committee encourages the Government to conduct an internal investigation and review so as to determine those responsible and to ensure that appropriate sanctions are taken to avoid repetition of such serious acts in the future.
   • (d) The Committee requests the Government to take the necessary measures to ensure that all workers terminated or suspended for anti-union reasons in the aftermath of the Ashulia strike who have not yet been reinstated through the various agreements concluded and who have indicated their willingness to return to work, are reinstated without further delay and to inform it of any developments in this regard. The Committee also requests the Government to provide detailed information on the status of the alleged 1,600 criminal complaints filed following the Ashulia strike, including information on the number of complaints which gave rise to criminal cases, the charges retained and their outcome.
   • (e) The Committee trusts that, while criminal offences committed during a strike, such as deliberate violence against persons or property, are legitimately dealt with pursuant to the penal law prohibiting such acts, the Government will ensure that recourse to penal sanctions and the filing of criminal charges are not misused to suppress peaceful trade union activities or to threaten and intimidate trade union members and leaders.

B. The complainant’s allegations

1. 189. In its latest communication, the complainant alleges that as a result of violent police intervention in peaceful protests of garment workers on 8, 9 and 10 January, one worker was shot and killed and at least 80 were injured. The complainant adds that the police had recourse to excessive force as it used rubber bullets and water cannons and fired tear gas to break up demonstrations.

C. The Government’s reply

1. 190. With regard to the allegations of death threats, physical abuse and beating of trade unionists while in custody, as well as the allegations of intimidation and harassment of the trade unionists, the Government indicates in its communication dated 1 October 2018 that no complaint denouncing such acts has been lodged to the police and the police would investigate if any such claim is made. Physical abuse in custody is rare but if it takes place, the persons at fault are taken to task in accordance with the law.
2. 191. With regard to the pending cases against trade unionists for their alleged involvement in the Ashulia strike and situation of those imprisoned after the strike, the Government indicates that the cases have all been concluded after investigation and no worker was charged in any of them. It further states that no unionist or worker was imprisoned after the strike and those who were in custody were released on bail immediately after the law and order situation in the area went back to normal.
3. 192. In reply to the Committee’s recommendation b), the Government indicates that on 10 April 2018, a meeting was held with the industrial police, which was presided by the Minister for Labour and Employment and where necessary instructions were given to the concerned officials. It further adds that the members of the Bangladesh Police are given basic courses and in-service training which include human rights, civil liberties and trade union rights and that 120 courses were arranged for different levels of industrial police between 2011 and 2017. Mid-level and senior police officials attended 30 more courses during the same period and the total number of participants in the courses of industrial police reached 5,694.
4. 193. With regard to the measures recommended by the Committee to ensure the free operation of union offices and conduct an internal investigation with the police to identify and sanction those responsible for interference in union activities, the Government reiterates its previous indication that for security reasons and with a view to protecting the offices and office bearers, two organizations in Ashulia were closed amidst a deteriorating law and order situation but were immediately reopened once there was no risk to operations. It further adds that as the offices of the two organizations were closed, the cancellation of the training programme was inevitable to ensure greater engagement of the trade union organizations and to avoid any unexpected security risk for the participants. There is no evidence that any training programme was cancelled in a normal law and order situation.
5. 194. With regard to the allegations of anti-union dismissal or suspension in the aftermath of the Ashulia strike, the Government reiterates that no worker was removed for having taken part in any activities relating to the strike. It adds however that a number of workers voluntarily resigned upon receipt of their due payment in accordance with Bangladesh Labour Act (BLA) and that due to continuous financial losses, two factories stopped their operation by invoking section 13 of the BLA. Finally, the Government specifies with regard to section 13 of the BLA that the provision is applied with caution, its arbitrary use is never encouraged and workers’ rights are never infringed.
6. 195. With regard to the 1,600 criminal complaints allegedly filed following the Ashulia strike, the Government reiterates that all cases and issues mentioned in the complaint are resolved and no charge was framed against any worker.
7. 196. With regard to the Committee’s recommendation that recourse to penal sanctions and the filing of criminal charges shall not be misused to suppress peaceful trade union activities or to threaten and intimidate trade union members and leaders, the Government indicates that if any criminal offence takes place during a strike, the respective authority institutes legal proceedings as per the Bangladesh Penal Code. It further emphasizes that it is strictly maintained that no action is taken against any trade union activists for peaceful demonstration and therefore there is no scope for misuse of the penal code.

C. The Committee’s conclusions

1. 197. The Committee notes that this case concerns allegations of serious violations of freedom of association rights by the Government, in particular through the action of police forces in the aftermath of a strike in the garment factories in Ashulia in December 2016. The alleged violations include arbitrary arrest and detention of trade union leaders and activists, death threats and physical abuse while in detention, false criminal charges, surveillance of trade unionists, intimidation and interference in union activities. The allegations also refer to the mass dismissal of workers by garment factories following a peaceful protest.
2. 198. The Committee notes the Government’s indication that the unionists who were in custody were released on bail as soon as the law and order situation in the area went back to normal and that all cases filed against workers were concluded and no worker was charged after the investigation. It notes however, that pursuant to the Government’s indication a number of unionists/workers were arrested and remained in custody during what the Government refers to as the period of deterioration of the law and order situation in the area of Ashulia and that at the end no charges were brought against these individuals. Noting that beyond the reference to the “law and order situation” the Government does not provide any justification for the arrest and detention of these persons, the Committee is bound to recall that the arrest and detention of trade unionists, even for reasons of internal security, may constitute a serious interference with trade union rights unless attended by appropriate judicial safeguards and that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject to arrests and detentions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 136 and 127]. Considering that the arbitrary arrest and detention of trade unionists involves a danger of abuse and is detrimental to the exercise of the right to freedom of association, the Committee requests the Government to take the necessary measures to strengthen accountability of the police for arbitrary deprivation of liberty and to continue to provide the security forces with the appropriate instructions and training in order to ensure that in the future trade unionists are not arbitrarily arrested and detained. It requests the Government to provide information on developments in this regard.
3. 199. In its previous examination of the present case, the Committee had requested the Government to institute an independent inquiry into the allegations of death threats, physical abuse and beatings while in custody, and into all alleged instances of intimidation and harassment of trade unionists in the aftermath of the Ashulia strike [see 384th Report, para. 169(a) and (b)]. It notes with deep concern that the Government simply responds that no denunciations were made but that the police will conduct an investigation if it receives a complaint. With regard to the allegations of the physical ill-treatment and torture of trade unionists, the Committee has recalled that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found, so as to ensure that no detainee is subjected to such treatment [see Compilation, op. cit., para. 111]. An independent inquiry into allegations of torture and ill-treatment is the first step for effectively protecting individuals against such serious violations of their fundamental rights. The Committee observes that requiring the victims of police ill-treatment to present a complaint to the police in the circumstances of this case is likely not to create a climate in which workers feel secure to engage and may therefore leave such grave allegations without response. It therefore urges the Government to institute an independent inquiry – to be carried out by an institution that is independent from the one allegedly implicated – into the allegations of death threats, physical abuse and beatings of trade unionists arrested and detained in the aftermath of the Ashulia strike, as well as into all other alleged incidents of intimidation and harassment by the police during the same period and to keep it informed of the steps taken in this regard. The Committee invites the complainant to provide any further relevant information to the appropriate national authority so that it can proceed to an investigation in full knowledge.
4. 200. The Committee had also previously noted the complainants’ allegations of police interference in trade union activities in the aftermath of the Ashulia strike, including spontaneous visits to union offices, disruption of training sessions and confiscation of training materials, forced cancellation of a health and training activity supported by the ILO, inquiries about previous and future meetings, confiscation of union office keys and police-ordered closure of organizations and requested the Government to ensure that the union offices concerned are able to operate freely. It had further encouraged the Government to conduct an internal investigation and review so as to identify and sanction those responsible and to avoid the repetition of such acts. The Committee notes in this regard the Government’s indication that the closure of two union offices was temporary and justified in view of the deteriorating law and order situation and that the cancellation of the training was inevitable to ensure greater engagement of the trade union organizations and avoid unexpected security risks for the participants.
5. 201. The Committee notes with regret that the Government does not provide any information on the conducting of an internal investigation and review into the allegations of repeated police interference in union activities. The Committee once again recalls that the entry by police or military forces into trade union premises without a judicial warrant constitutes a serious and unjustifiable interference in trade union activities. Furthermore, the right of occupational organizations to hold meetings on their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered [see Compilation, op. cit., paras 280 and 203]. The Committee firmly expects the Government to ensure that appropriate instructions are given to the police so as to prevent the repetition of such practices in the future and requests to be kept informed of the measures taken in this regard.
6. 202. With regard to the allegations of anti-union dismissal and suspension, the Committee notes that the Government once again indicates that no worker was removed for participation in activities related to the Ashulia strike, but a number of workers resigned upon receipt of their due payments and two factories had closed due to continuous financial losses. Considering that no contradictory or additional information in this regard has been received from the complainants, the Committee will not pursue the examination of this question.
7. 203. The Committee notes the serious new allegations submitted by the complainant in its latest communication concerning violent police repression of peaceful demonstrations of garment workers entailing the death of one worker and the injury of many more. In view of the seriousness of these allegations, the Committee requests the Government to provide detailed observations in response without delay so that it may examine these matters in full knowledge of the facts. It also invites the complainant to provide any further relevant information to the appropriate national authority so that it can proceed to an investigation in full knowledge.