Informe provisional - Informe núm. 384, Marzo 2018

1. 146. The complaint is contained in a communication from the International Trade Union Confederation (ITUC), the IndustriALL Global Union (IndustriALL) and UNI Global Union (UNI) dated 26 February 2017.
2. 147. The Government provides its observations in a communication dated 1 November 2017.
3. 148. Bangladesh 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. 149. In their communication dated 26 February 2017, the complainants denounce serious violations of freedom of association rights by the Government, including arbitrary arrest and detention of trade union leaders and activists, death threats and physical abuse while in detention, false criminal charges, surveillance, intimidation and interference in union activities, as well as mass dismissals of workers by garment factories following a peaceful protest.
2. 150. The complainants allege arbitrary arrest and detention of over two dozen trade union leaders and activists following a work stoppage in Windy Apparels Ltd, a ready-made garment factory in Ashulia, a suburban area of the capital Dhaka, on 11 December 2016. The complainants explain that the work stoppage aimed at increasing the minimum wage for garment workers and was supported by workers from around 20 factories, most of which were non-unionized. However, on 20 December 2016, pursuant to a decision of the Bangladesh Garment Manufacturers and Exporters Association (BGMEA), around 60 factories, many of which were not affected by the protest, locked-out their workers, refused to pay for the days the factories were closed and thus effectively ended the work stoppage. According to the complainants, the arrests and detention that followed the strike were arbitrary, as the concerned trade unionists neither carried out violent acts nor damaged property and most of them were not even present in the region during the strike or had no role in it. The complainants allege that the Government is engaged in an all-out assault on trade unionism and used the protest as a pretext to clamp down on unions which have been active in organizing the garment sector and to detain union leaders and charge them with a variety of unrelated crimes. In particular, the complainants denounce the following incidents of arrest and detention coupled with death threats, physical abuse or false criminal charges:
   • – On 21 December 2016, the police invited a number of trade union leaders and activists to a meeting to discuss the recent work stoppage in Ashulia but arrested those who attended: Ibrahim (an employee of the Bangladesh Centre for Worker Solidarity (BCWS)), Shoumitro Kumar Das (President of Garment Sramik Front Savar-Ashulia-Dhamrai Regional Committee), Rafiqul Islam (President of the Garment and Industry Sramik Federation), Al Kamran (President of Shwadhin Bangla Garment Sramik Federation Savar-Ashulia-Dhamrai Regional Committee), Shakil Khan (General Secretary of Shwadhin Bangla Garment Sramik Federation Savar-Ashulia-Dhamrai Regional Committee), Shamim Khan (President of Bangladesh Trinomul Garment Sramik-Kormochari Federation) and Md Mizan (unionist from the Textile Workers’ Federation). All of the arrested unionists were denied the opportunity to speak to lawyers, colleagues or family members for over 24 hours, even though the Constitution of Bangladesh provides for the right to consult with a legal practitioner at the earliest opportunity. The following day, they were taken to court and charged under sections 16 and 25 of the Special Powers Act, 1974, for having committed prejudicial acts and for conspiracy and aiding and abetting the commission of an offence under the Act (Case No. 30/526 of Ashulia police station). The complainants indicate, however, that the offence of “prejudicial acts” under section 16 had been repealed and not subsequently replaced and that in January 2017, the Bangladesh High Court confirmed that the use of the offence was unlawful. The arrested leaders and activists were also charged in another eight cases filed by different factory owners from Ashulia for unlawful assembly, criminal trespass, theft, criminal intimidation and other related charges. One of the detained unionists informed that he had been interrogated in an isolated building in the woods, threatened to be killed and told that it would be covered up as a crossfire incident, while another two were badly beaten while in custody. Another unionist, the President of the union at the Designer Jeans Ltd, was separately taken from his home by a group of men, some in police uniforms and some in plain clothes, brought to court, charged in the same case and remanded to the Dhaka central jail for three days.
   • – On 22 December 2016, Asaduzzama and Golam Arif, organizers from the Bangladesh Independent Garment Workers Union Federation (BIGUF), were taken from their residences in Gazipur by the detective branch of the police and reported being physically beaten while in custody. Two days later, the Magistrates Court added them as suspects under sections 15(3) and 25(D) of the Special Powers Act in the pending Case No. 32 of 2015 of Joydebpur police station in Gazipur district, although they had not been named as suspects at the time the case was filed in January 2015 (charges were primarily levelled against leaders and activists of the Bangladesh Nationalist Party (the main opposition party) and Jamaat Islami (an opposition Islamic Party)).
   • – On 23 December 2016, Nazmul Huda, a journalist who covered the Ashulia work stoppage, was invited by the police to a news conference but, upon arrival, he was forced into a police vehicle, beaten, and driven around Dhaka until around 4 a.m., while being threatened with a “cross-fire” killing. He was produced in court the following day. Ahmed Jjbon, a union leader, vanished on 23 December following a phone call from the detective branch of the police asking him to meet the police on 27 December. He was untraceable until he was produced in court the following morning.
   • – On 25 December 2017, three activists from the United Federation of Garment Workers were charged under section 15(3) of the Special Powers Act for sabotage, in particular for conspiring to cause damage to the country’s economy and spreading fear throughout the civilian population.
   • – On 27 December 2016, Md Ranju, a BIGUF organizer, was detained at his office by the detective branch of the police and charged under the Explosives Act for possession of explosive substances with the intent to endanger life or cause injury to person or property. On 14 February 2017, he was released on bail and despite the charges against him, there is no evidence that he possessed or planted any explosives.
   • – On 10 February 2017, four armed police officers in plain clothes entered the BIGUF office in Chittagong, where an industrial dispute resolution training with 25 factory level union leaders was taking place. The police asked questions about the training while taking photos of the banner and the participants, before requesting Chandon Kumar Dey, the BIGUF Finance Secretary, to go on the street where six police motorcycles and ten policemen in plain clothes were waiting. Kumar Dey and Jewel Borua, the BIGUF Joint Secretary, were asked to accompany the police for questioning. Kumar Dey insisted he be the only one taken and was thus driven to the double mooring police station in Chittagong where he was questioned about BIGUF’s activities and affiliates. When several BIGUF organizers and union leaders arrived at the police station to show their support, eight of them were detained: Jewel Borua (the BIGUF Joint Secretary), Rintu Barua, Nipa Akter, Ayub Nobi, Md Rafik, Sam Dulal Bormon, Jahangir and Zahir Uddin (union leaders from garment factory trade unions). All nine trade unionists were then moved to the Kotuwali police station, where they were formally arrested and charged under sections 143, 148, 149, 186, 332, 333 and 353 of the Penal Code (Case No. 70/8/2016 of Kotowali police station dating back to August 2016). They were released on bail on 13 February 2017.
3. 151. The complainants denounce the apparent lack of evidence of any criminal activity in the abovementioned cases and state that while allegations against workers include property damage, such as destruction of factory doors, windows and machinery, no corroborating information has been produced by factory owners or the police. In addition, according to an investigation conducted by Human Rights Watch in Ashulia, there was no evidence of destruction at the factories, no machinery needed replacement or repairs and residents did not witness any looting or violence.
4. 152. The complainants further allege persistent surveillance and intimidation of trade unionists, as well as police-ordered closure of organizations, as a result of which at least ten garment workers’ federations and two non-governmental organizations protecting workers’ rights can no longer operate. Many organizers, staff and activists fled the area or are in hiding out of concerns for personal safety and some union leaders were forced by the police to fill out biographical data sheets, which contained 36 questions concerning detailed personal and family information not relevant to their work. According to the complainants, requests to fill out such detailed personal information constitutes a severe intrusion into the privacy of the individuals and the only reason to collect this type of information is to harass or intimidate trade unionists, their families and associates.
5. 153. The complainants further denounce the following concrete incidents of intimidation and interference in trade union activities:
   • – On 22 December 2016, Moshrefa Mishu, President of the Garment Workers Unity Forum, was stopped and detained by the police on her way to a press conference. While the police claimed that she had simply been invited for a cup of tea, she was only returned home at 5.30 p.m. that evening.
   • – On 29 December 2016, four police officers came to the BCWS office in Zirabo, Ashulia, confiscated a set of office keys, gave them to the landlord and demanded he contact them directly should any attempt be made to re-open the Centre. Two days later, the police, led by an inspector from the industrial police, once again visited the Zirabo office to verify that the Centre had not been re-opened and gave the landlord the same instructions as previously.
   • – On 20 January 2017, the police disrupted a health and safety training led by the BIGUF and the Bangladesh Institute for Labour Studies (BILS) and supported by the ILO. The police gathered the participants and photographed one of them because he resembled Monowar Hossain, a BIGUF organizer. The sub-inspector demanded that the training be cancelled, arguing that it required prior police permit (which is false, according to the complainants), threatened that any workers who continued to associate with the BIGUF would be in trouble and that if he caught the union’s Vice-President, he would kill him by drowning. The sub-inspector also told Sanjida, the General Secretary of BIGUF, to leave the federation at once or face the consequences and continued to disparage and threaten the union, its leaders and organizers before the assembled participants. Finally, the police gathered the personal information of the participants and their family members, forced the organizers to cancel the training, confiscated the programme banner, notepads, flipcharts and bags, and padlocked and closed the office. On 2 February 2017, two industrial police officers in plain clothes visited the BIGUF office in Chittagong, asked one member to fill in the biographical data sheet for herself, as well as for all relevant persons from the BIGUF, the Clean Clothes Campaign (CCC) and IndustriALL, showed her a letter from a superior officer instructing the police to collect that information but refused to provide a copy of the letter to the BIGUF. The following day, four local police officers once again entered the BIGUF office while a labour law training for garment sector workers was in course, collected personal information from all the participants, spent several hours at the office and told the BIGUF staff to inform the police about its future activities so that they could attend them.
   • – On 30 January 2017, Nurul Amin Mamun, an organizer from the Bangladesh Revolutionary Garment Workers Federation (BRGWF), was arrested by the police in the union’s office in Savar after having met earlier that day with a group of workers seeking his assistance and was held under Ashulia Case No. 28 filed by the garment factory, in which the December 2016 work stoppage occurred, even though he had not been originally named as a suspect in that case. On 7 February 2017, two industrial police officers in plain clothes entered the BRGWF office in Gazipur and, in an effort to collect information on two organizers, they called one of the main leaders and asked him detailed questions that seemed to mirror the set of personal questions the police had previously circulated to various federations active in Gazipur, including information about political activities, relationships and financial situation. The police spent four hours in the federation’s office and asked the same questions to a female organizer working there.
   • – On 5 February 2017, leaders of the Garment Workers Solidarity Federation (GWSF) and the Akota Garment Workers’ Federation (AGWF) reported that officers from the industrial police visited the federations’ branch offices in Gazipur and presented organizers in both offices with a two-page biographical data sheet so as to collect personal information for all the federations’ leaders.
   • – On 6 February 2017, three police officers from the special branch entered the Solidarity Centre’s office in Gulshan to inquire about a meeting to be held later that day with garment federations that are members of the IndustriALL Bangladesh Council (IBC). The police asked to see the organization’s registration documents and requested more information on the meeting, including its participants. Soon after, an additional 15 police officers gathered outside the office’s front gate, set up a large camera aimed at the door of the compound and took photographs of those entering. The arriving participants reported that many more police officers circled the block, estimating their number to be between 30 and 50. Participants at the meeting also reported that all federations represented at the training had been visited by the police and asked to provide personal data on their leaders and staff. Following the arrival of a USAID official, the police began to disperse. On 8 February 2017, a constable from the industrial police intelligence branch visited the Solidarity Centre, requested to speak to one specific staff member and inquired about the types of programmes and activities conducted by the organization. He also briefly spoke to the Country Programme Director, asked for the contact information for each staff member and requested to be notified about the dates of their training activities.
6. 154. The complainants further allege arbitrary use of section 13(1) of the Bangladesh Labour Act (BLA), which allows employers to close down a factory in the event of an illegal strike, and denounce that in the present case the determination of the illegality of the strike was made unilaterally by the BGMEA (the BGMEA claims that it closed down the concerned factories to protect the livelihoods of the vast majority of innocent workers). Furthermore, the BLA does not provide for a procedure allowing the Department of Labour (DoL) to assess whether section 13 of the BLA was properly invoked and since judicial procedures are extremely lengthy and involve a high level of corruption, workers rarely use the labour courts to challenge the application of this provision. The complainants also consider that a work stoppage in furtherance of workers’ interests, even where it is taken by mostly unrepresented workers, should be protected and should not give rise to employers’ retaliation. However, following the December 2016 Ashulia strike, over 1,600 workers were either suspended, dismissed or forced to resign and while the exact number remains unclear, it appears that none of the suspensions and dismissals were carried out in accordance with the procedures set forth in the BLA, as they appear to be indiscriminate and without evidence as to whether those workers who were terminated even participated in the work stoppage. In addition, where unions were operating within the concerned factories, their members and leaders were targeted and dismissed as part of the mass dismissals.
7. 155. Furthermore, according to the complainants, the Government and the employers ignored elected and representative trade union officials in the negotiations following the mass dismissals and instead engaged in negotiations with two trade union federations, which have no unions at the concerned garment factories and possibly no members among the dismissed workers (the Bangladesh Textile and Garment Workers Sramik League and the Bangladesh Apparel and Garments Sramik League). These federations were ordered to compel workers to return to work, disregarding the federations’ explanations that they had no power over workers in the striking factories, as a vast majority of them were non-unionized. The complainants also allege that further memoranda of understanding between the BGMEA and several other factories, through which 1,395 workers allegedly opted to resign with compensation, were also concluded with trade unions picked by the Government or the employers which were neither representative of the workers concerned nor mandated by non-unionized workers to negotiate on their behalf. According to the complainants, any waiver of the right of workers to contest their suspension or dismissal should thus be considered null and void. With regard to the aftermath of the Ashulia strike, the complainants add that besides the specific criminal cases filed against trade unionists mentioned above, the police intimidate union leaders and workers by registering criminal complaints against unknown persons, which allows them to misuse the threat of arrest against anyone, and as a result of which there are now open-ended complaints against over 1,600 unknown persons for having committed crimes during the Ashulia strike. The complainants also denounce excessive restrictions on the right to strike contained in the BLA, as previously highlighted by the Committee of Experts on the Applications of Conventions and Recommendations.
8. 156. Finally, the complainants request the Committee to urge the Government to: release all imprisoned workers and drop all charges filed by the authorities, and encourage private entities to drop charges against both named and unnamed defendants; investigate and prosecute all claims of threats of death and physical abuse while in custody; immediately permit trade unions and non-governmental organizations defending workers’ rights to access and use their facilities without threat or intimidation; ensure that no rights are waived by agreements between employers and trade unions which are not representative of the workers on behalf of whom they claim to negotiate; ensure the immediate reinstatement of all workers who were removed from employment; ensure that, should a future strike be deemed illegal it is dealt with in accordance with the provisions of the BLA, not the Penal Code or other laws; amend the law so that all cases, including the criminal cases related to disputes between workers and employers are dealt with by the Labour Court; ensure that, in the case of any future unrest in the garment sector, no criminal case is filed prior to a thorough and transparent investigation by the Department for Inspection of Factories and Establishments (DIFE) and the DoL, with the full participation of worker representatives, in which credible evidence would support such a charge; enact amendments, through social dialogue, to prevent the arbitrary use of section 13 of the BLA by the employers; and bring the BLA into full conformity with Convention No. 87.

B. The Government’s reply

1. 157. In its communication dated 1 November 2017, the Government indicates with regard to the allegations of arrest and detention of trade union leaders, physical abuse and false criminal charges, that under the law, the police are obliged to produce an arrested or detained person before the magistrate within 24 hours from the time of arrest and that all persons who were arrested and detained after the Ashulia incident were later released on bail. There were 11 cases, out of which eight have been disposed of after investigation with a final report and the remaining three are being investigated and will be resolved at the shortest possible time. The process of investigation is independent and the Government refrains from interfering in it, except for taking steps with the independent investigating authority to expedite the matter. The Government further explains that no complaint of threats or physical abuse of trade union leaders while in detention has been lodged to the police but should any such claim be made, the police will proceed to an investigation. Physical abuse in custody is rare but if it takes place, the persons at fault are taken to task in accordance with the law. Concerning the allegations of surveillance and intimidation leading to the closure of trade unions’ and workers’ organizations’ offices, the Government states that although the offices of two organizations in Ashulia were closed due to the law and order situation so to ensure their security, they were immediately reopened once there was no risk to their operation.
2. 158. With regard to the allegations of mass dismissals following the December 2016 Ashulia unrest, the Government indicates that no worker was removed for having taken part in any activities relating to the strike but that a number of workers voluntarily resigned upon receipt of their legal dues in accordance with the BLA and two factories are no longer in operation. The Government also states that as a result of illegal strikes and incurring continuous financial losses, employers are compelled to close down factories by invoking section 13 of the BLA. However, this provision is exercised cautiously, its arbitrary use is never encouraged and workers’ rights are never infringed.
3. 159. Concerning the allegations that the memoranda of understanding made in the aftermath of the Ashulia strike were concluded with trade union federations that were not representative of the concerned workers, the Government states that several meetings were held with the workers in the presence of the central leaders, which is customary in Bangladesh, and the workers were always represented by a federation or a union. The Government also indicates that no settlement between workers and employers takes effect without the workers being represented by a union or a federation leader and workers’ rights are not liable to waiver in such agreements.
4. 160. As regards the complainants’ request that all labour issues, including criminal activity resulting from labour unrest, be dealt with by the labour courts, the Government states that workers responsible for taking part in an illegal strike, as well as any offence committed during a labour unrest which falls within the purview of the BLA, are dealt with in accordance with the BLA and not the Penal Code. However, if during an illegal strike a worker commits an offence, including rioting, destroying property of the employer, causing grievous injury or death, public nuisance or disrupting public peace and tranquillity in any way, or creating a disorderly or lawless situation, the offender will be liable under the Penal Code, as there is no scope to initiate criminal cases for such offences under the BLA and the Directorate of Labour and the DIFE are not authorized by the BLA to deal with offences which are criminal in nature. The Government also indicates that although the BLA is currently undergoing a revision process, there are no amendments foreseen to enable criminal cases relating to disputes between workers and employers to be dealt with by the Labour Court.

C. The Committee’s conclusions

1. 161. The Committee notes that this case concerns allegations of serious violations of freedom of association rights by the Government, including arbitrary arrest and detention of trade union leaders and activists, death threats and physical abuse while in detention, false criminal charges, surveillance, intimidation and interference in union activities, as well as mass dismissals of workers by garment factories following a peaceful protest.
2. 162. The Committee notes the complainants’ allegations that the Government is engaged in an all-out assault on trade unionism and used the December 2016 Ashulia strike as a pretext to repress trade unions active in the garment sector. The Committee observes from the detailed information provided by the complainants that these allegations refer to arbitrary arrest and detention of over two dozen trade union leaders and activists, most of whom had not participated in the work stoppage, and were allegedly accompanied by interrogations, physical abuse, beatings and death threats by the police, as well as denial of access to lawyers and the filing of false criminal charges for repealed offences or for unrelated crimes for which criminal cases had been initiated months before. The Committee notes the Government’s indication in this regard that all persons who were arrested and detained were later released on bail, that out of 11 cases, eight have been resolved and three are still being investigated, and that no complaint of threats or physical abuse in detention has been lodged with the police but should any such claim be made, the police will proceed to an investigation. While taking due note of this information, the Committee observes that the Government does not address the allegations that a repealed criminal offence was used in the charges against a number of arrested trade unionists and that the criminal charges were filed without any corroborating evidence and regrets that despite the extremely serious and detailed allegations raised by the complainants (death threats, physical abuse and beatings by the police), the Government does not elaborate on this issue and simply indicates that no investigations have so far been conducted as no complaints were received. Observing the Government’s suggestion that the complainants should have filed complaints with the institution they were complaining against (i.e. the police), the Committee considers that measures should have been taken to conduct an independent inquiry with a view to bringing any responsible persons to account, especially in light of the gravity of the allegations. The Committee recalls in this regard the 2017 recommendations of the Conference Committee on the Application of Standards which called upon the Government to continue to investigate, without delay, all alleged acts of anti-union discrimination, including in the Ashulia area, and impose fines or criminal sanctions, particularly in cases of violence against trade unionists, according to the law. It similarly notes that, in its latest report, the Committee of Experts on the Application of Conventions and Recommendations expressed deep concern at the continued violence and intimidation of workers and expected the Government to take any necessary measures to prevent such incidents in the future and to ensure that any such incidents are properly investigated. It also observed that, according to the ITUC, baseless criminal charges remained pending against workers for their involvement in the Ashulia incident and requested the Government to take the necessary measures to ensure that any pending proceedings in relation to the work stoppage be concluded without delay.
3. 163. The Committee considers that the described situation raises serious concerns as to the environment for free exercise of trade union rights and wishes to emphasize that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed. While persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists. Measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle for the exercise of trade union rights. As regards allegations of 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 Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 43, 72, 63 and 55]. Furthermore, the Committee has pointed out the danger for the free exercise of trade union rights of sentences imposed on representatives of workers for activities related to the defence of the interests of those they represent [see Digest, op. cit., para. 92]. In view of the above and fully endorsing the conclusions of the Conference Committee and the Committee of Experts in this regard, 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.
4. 164. The Committee notes that the complainants further allege persistent surveillance and intimidation of trade unionists by the police, including through repeated visits of trade union offices, death threats and other menaces not to pursue union activity, taking of photographs of trade union members and participants in labour trainings, repeated inquiries about trade union leaders and staff and collection of personal information, including through the use of a biographical data sheet. The Committee observes that the biographical data sheet provided by the complainants contains very detailed personal questions, such as a person’s religion, marital status, annual income and bank account details, political involvement, insurance policy, personal or family car registration number, family history and weaknesses of character, and notes with concern that collection of such sensitive personal information could significantly contribute to the perception of harassment and intimidation of trade unionists and their families, especially in view of the general climate of fear and repression of trade unionism alleged by the complainants, and regrets that the Government fails to provide any information in this regard. Further observing with concern that, according to the complainants, many unionists and activists are in hiding out of fear for their personal safety, the Committee recalls that the environment of fear induced by threats to the life of trade unionists has inevitable repercussions on the exercise of trade union activities, and the exercise of these activities is possible only in a context of respect for basic human rights and in an atmosphere free of violence, pressure and threats of any kind. The apprehension and systematic or arbitrary interrogation by the police of trade union leaders and unionists involves a danger of abuse and could constitute a serious attack on trade union rights. A climate of violence, coercion and threats of any type aimed at trade union leaders and their families does not encourage the free exercise and full enjoyment of the rights and freedoms set out in Conventions Nos 87 and 98. All States have the undeniable duty to promote and defend a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of life [see Digest, op. cit., paras 60, 68 and 58]. In these circumstances, 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.
5. 165. The Committee further observes that parallel to the allegations of intimidation and surveillance of trade unionists, the complainants also denounce repeated interference by the police in trade union activities, including spontaneous visits to union offices, disruption of training sessions and confiscation of training material (banners, notepads, flipcharts and bags), forced cancellation of a health and safety training activity supported by the ILO, inquiries about previous and future meetings, confiscation of union office keys and police-ordered closure of organizations. The Committee notes with concern these serious allegations and observes that the Government simply indicates that although the offices of two organizations in Ashulia were closed to ensure their security, they were immediately reopened once there was no risk to their operation. In these circumstances, the Committee must recall that attacks against trade unionists and trade union premises and property constitute serious interference with trade union rights. Criminal activities of this nature create a climate of fear which is extremely prejudicial to the exercise of trade union activities [see Digest, op. cit., para. 59]. The Committee also wishes to emphasize that the inviolability of trade union premises is a civil liberty which is essential to the exercise of trade union rights. 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. The confiscation of trade union property by the authorities, without a court order, constitutes an infringement of the right of trade unions to own property and undue interference in trade union activities. The occupation or sealing of trade union premises should be subject to independent judicial review before being undertaken by the authorities in view of the significant risk that such measures may paralyse trade union activities [see Digest, op. cit., paras 178, 181, 190 and 188]. Highlighting the gravity of the consequences such alleged interference can have on the functioning of trade unions, 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.
6. 166. The Committee further notes that the complainants and the Government disagree on a number of issues with regard to the Ashulia strike, including the lawfulness of the industrial action and the ensuing closure of the factories by the employers, the nature of the termination of around 1,600 workers, as well as the filing of 1,600 open-ended criminal complaints against unknown persons. Furthermore, while the complainants denounce that the negotiations that followed the incident were conducted with trade union federations picked by the Government or the employers which did not represent the concerned workers, the Government indicates that no worker was removed for having taken part in any activities relating to the strike but a number of them resigned voluntarily upon receiving their legal dues and that workers were represented in the negotiations by central leaders, as is general practice, and an agreement does not become effective without the workers being represented. In this regard, the Committee also notes the information provided by the Government to the 2017 Conference Committee, indicating that a tripartite agreement was reached with IndustriALL in February 2017, whereby all persons imprisoned and under police custody after the Ashulia incident had been released on bail and the salary of workers who had left jobs had been paid as per the labour legislation, as well as the conclusions of the Conference Committee which called on the Government to continue to investigate, without delay, all alleged acts of anti-union discrimination and ensure the reinstatement of those illegally dismissed in the Ashulia area.
7. 167. In view of the opposing views of the complainants and the Government on the above matters and while acknowledging that it does not have sufficient information at its disposal to pronounce itself on the lawfulness of the Ashulia strike and the subsequent lockout, the Committee wishes to recall that the right to strike is a prerogative of workers’ organizations (trade unions, federations and confederations) and that the responsibility for declaring a strike illegal should lie with an independent and impartial body. While further emphasizing that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., para. 667], the Committee must express concern at the more than 1,000 workers who lost their employment, and recalls in this regard that arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve [see Digest, op. cit., para. 674]. With regard to the alleged 1,600 open-ended criminal complaints against unknown persons, the Committee recalls that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., para. 668]. Furthermore, the Committee wishes to point out that while it understands the usefulness of addressing compensation issues with representative trade union spokespersons, especially in cases concerning thousands of workers from different factories, it also considers it critical that any such representatives be clearly mandated for this purpose by the concerned workers. In view of the circumstances of this case and fully endorsing the conclusions of the Conference Committee in this regard, 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.
8. 168. Finally, the Committee notes the complainants’ allegation that the BLA imposes excessive restrictions on the right to strike and their request for any future strike deemed illegal, as well as criminal cases related to labour disputes, to be dealt with by the labour courts under the BLA. The Government, for its part, indicates that although workers responsible for taking part in an illegal strike are dealt with in accordance with the BLA, offences committed during an illegal strike, such as serious injury or death, are addressed under the Penal Code, as the BLA does not authorize to hold trials for such offences. The Committee therefore 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.