Effect given to the recommendations of the committee and the Governing Body - REPORT_NO357, June 2010

Effect given to the recommendations of the Committee and the Governing Body

1. 54. The Committee last examined this case, which concerns allegations of illegal detention of trade union leaders, violations of the right to collective bargaining and acts of intimidation, harassment and anti-union dismissals in the Pearl Continental Hotels, at its meeting in March 2009 [see 353rd Report, paras 170–175]. On that occasion, the Committee requested the Government to keep it informed of the progress of all judicial proceedings and to transmit the judgements on the status of collective bargaining agents (CBAs) as soon as they were handed down. The Committee further requested the Government to report on the outcome of an independent inquiry into the alleged beatings of Messrs Aurangzeg and Hidayatullah on 6 July 2002 at the police station. In this respect, the Committee requested the Government to ensure that appropriate measures, including compensation for damages suffered, sanctioning those responsible and appropriate instructions to the police forces, are taken to guarantee that no detainee is subjected to such treatment in the future. The Committee further requested the Government to report on the outcome of the investigation of the anti-union dismissals at the hotel and, if it had been found that there has been anti-union discrimination, to ensure that the workers concerned are reinstated in their posts, without loss of pay and, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
2. 55. In a communication dated 7 April 2009, the complainant, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), recalls that this case was first examined by the Committee on Freedom of Association in June 2003 and that one of the key elements of the alleged acts of illegal detention, intimidation, harassment and anti-union dismissals was the arrest and detention of trade union officers following an electrical fire at the hotel on 6 January 2002. Although the hotel’s original police complaint of 6 January 2002 was issued against “unknown persons”, 11 union officers and members were immediately arrested and illegally detained. When no evidence could be found linking them to the fire, a group of trade unionists remained in indefinite custody while police attempted to link them with other ongoing criminal cases involving burglary and murder. When this failed, three office bearers (Ghulam Mehboob, Basheer Hussain and Aurangzeb) were specifically charged with criminal involvement in the fire. They were dismissed from the hotel due to alleged absenteeism while in custody, and only released on bail on 21 March. Following their illegal detention and dismissal, these trade union officers still had to face prosecution for their alleged acts. After seven years of vilification and false accusations, the accused union officers have been definitively acquitted of involvement in the fire. On 9 February 2009, the District Judge of the South VI District Court issued a written verdict, following an earlier announcement in court, declaring himself “of the considered view that the prosecution has miserably failed to prove its case” against the two men, observing that “doubt prevails at every nook and corner of the case”.
3. 56. The complainant recalls that the Pearl Continental Hotel Workers’ Union (PCHWU), a member of the Pearl Continental Hotel Workers’ Federation, was established in 1970 and continuously enjoyed the recognized CBA status until the hotel management unilaterally terminated this status following the fire in January 2002. Another union existed at the hotel, the Pearl Continental Hotel Employees Union, but never challenged the CBA status of the PCHWU before December 2002. On 10 October 2003, the Labour Court upheld the CBA status of the PCHWU. On 18 May 2006, the Labour Court dismissed the case challenging the union’s registration. An appeal of this decision was made by the management before the Sindh High Court, which upheld the Labour Court decision. The complainant indicates that the CBA status of the PCHWU was also confirmed by the Sindh Director of Labour, but nothing was done to implement this decision – another lapse on the part of the Government with respect to the ILO Convention to which it is a signatory. The IUF further alleges that, in 2004, the management succeeded in registering a dubious, management-dominated organization, the Star Labour Union (SLU), whose registration was challenged in the Sindh High Court. The case is still pending. The SLU has negligible support and membership and has no collective bargaining agreement.
4. 57. Concerning the Government’s claim that the management is providing every facility to all its workers’ organizations without discrimination and that the hotel fulfils all international obligations, the complainant alleges that the management has consistently used calculated delay tactics in the courts to prolong all legal cases in order to eliminate the PCHWU from the establishment; that the hotel employees have been without a collective bargaining agreement since 2001; that the members and office bearers of the PCHWU are prohibited from using the noticeboard while the SLU is allowed full use of this facility and many other facilities; and that two officers of the PCHWU, President Muhammad Nasir and Social Secretary Muhammad Nawaz have been on forced leave since 2002 and are prohibited from entering the hotel and thus maintaining contact with the members at the workplace. The IUF contends that far from fulfilling its international obligations, the hotel, with the support of the Government, is pursuing a policy of systematic discrimination against the PCHWU and its members.
5. 58. Furthermore, according to the complainant, there has been no independent inquiry into the alleged beating of the union officers by the police on 6 July 2002, nor has there been an official investigation into the anti-union dismissals at the hotel, as called for by the Committee in 2003. Despite the fact that the union has submitted detailed reports to the Labour Directorate of Sindh, these submissions remain without effect. There have been no reinstatements and no compensation for illegal dismissals.
6. 59. With regard to the Government’s claim that it is not possible for any authority to intervene in the cases currently pending before courts, the complainant alleges that this misrepresents both the actual state of affairs and the Government’s mandate and obligations. According to the complainant, nothing at present prevents reinstatement with full compensation of all illegally dismissed workers, recognition of the PCHWU and the signing of a collective bargaining agreement. It is the responsibility of the Labour Department, particularly in light of the Committee’s 2003 recommendations, to actively facilitate a negotiated resolution to this dispute.
7. 60. In the light of the court decision acquitting the union officers, the IUF requests that the Committee requests the Government, as a matter of urgency, to swiftly implement the June 2003 recommendations.
8. 61. The Committee notes the information provided by the complainant organization in a communication dated 7 April 2009 in which it contends that no measures have been taken by the Government to implement the recommendations of the Committee since the first examination of this case in June 2003. The Committee deeply regrets that no observations have been received from the Government in reply to this communication. The Committee notes with concern that, since the first examination of this case in June 2003, the Government provided no information on the concrete measures taken to implement any of the Committee’s recommendations.
9. 62. The Committee notes from the IUF’s communication that two union officers, Bashir Ussain and Ghulam Mehboob, who were charged with criminal involvement in the fire in January 2002, were acquitted on 9 February 2009. The Committee recalls from its first examination of this case that the trade union leaders were dismissed from the hotel while they were in custody on the pretext of their being absent from work. On that occasion, it concluded that the acts of the management, in particular the dismissal of trade union leaders, constituted anti-union discrimination. Welcoming the acquittal of the two trade union leaders, the Committee strongly urges the Government to take the necessary measures to ensure that the trade union leaders in question are reinstated in their jobs without loss of pay. If reinstatement is not possible, the Committee requests the Government to ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals. The Committee urges the Government to instruct the competent labour authorities to undertake without delay an in-depth investigation into the dismissals of nine other trade unionists in January 2002 and, if it is found that there has been anti-union discrimination, to ensure that the workers concerned are reinstated in their posts without loss of pay. The Committee requests the Government to keep it informed in this respect.
10. 63. With regard to the alleged beatings of Messrs Aurangzeg and Hidayatullah on 6 July 2002 at the police station, the Committee notes that, according to the complainant no independent inquiry has been established by the Government concerning these allegations. The Committee must once again express its deep regret concerning the failure of the Government to conduct independent inquiries in this respect and urges the Government to do so without further delay and to keep it informed of the outcome of this investigation.
11. 64. The Committee notes the information provided by the complainant regarding the actions taken in courts by the hotel management to repeal the CBA status of the PCHWU. In this regard, the Committee notes that the Sindh High Court upheld the judgement of the Labour Court of 18 May 2006, which dismissed the case challenging the union’s registration and that on 27 October 2008, the Sindh Director of Labour confirmed the CBA status of the PCHWU. The Committee further notes with concern the complainant’s indication that for nine years, hotel employees have been without a collective agreement. The Committee draws the Government’s attention to Article 4 of Convention No. 98 according to which measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee urges the Government to take the necessary measures in order to promote and facilitate collective bargaining at the Pearl Continental Hotel and to keep it informed in this respect. Furthermore, the Committee recalls that employers should recognize, for collective bargaining purposes, the organizations representative of the workers employed by them. The recognition by an employer of the main unions represented in the undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking [see Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, paras 952–953]. The Committee urges the Government to take the necessary measures to ensure that the PCHWU is fully recognized as a collective bargaining agent by the management and to keep it informed in this respect.
12. 65. The Committee notes that the complainant organization alleges that the management discriminates the PCHWU and favours the allegedly yellow trade union, the SLU. In particular, according to the IUF, the management gave preferential access to the noticeboard to the SLU and refused entry to the hotel to two officers of the PCHWU. In this regard, the Committee considers that such practices are harmful to the development of normal and healthy labour relations. The respect for the principles of freedom of association requires that employers exercise great restraint in relation to intervention in the internal affairs of trade unions. They should not, for example, do anything which might seem to favour one trade union at the expense of another. Furthermore, the Committee recalls that for the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of their members, by enjoying facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members [see Digest, op. cit., para. 1106]. The Committee requests the Government to inform it of the measures taken in order to ensure that these principles are respected at the Karachi Pearl Continental Hotel.
13. 66. More generally, the Committee expresses its concern at the apparent lack of will of the administrative and judicial authorities to ensure that the allegations of violations of fundamental trade union rights are examined promptly and that the decisions taken by the relevant authorities are effectively enforced. The Committee recalls that justice delayed is justice denied and further recalls that it has always attached great importance to the principle of prompt trial in all cases, including in which trade unionists are charged with criminal offences. It further recalls that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 820]. The Committee requests the Government to take the necessary measures in order to ensure that all allegations of violations of trade union rights are examined in the framework of national procedures which shall be prompt and that administrative and judicial decisions once rendered are implemented without delay. The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.