Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 386, Junio 2018

1. 514. The complaint is contained in a communication from the Building and Wood Workers’ International (BWI) dated 15 June 2017 and supported by the Pakistan Federation of Building and Wood Workers (PFBWW) in a communication dated 6 July 2017.
2. 515. The Government provides its observations in communications dated 11 January and 9 May 2018.
3. 516. 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. 517. In their communications dated 15 June and 6 July 2017, the complainants denounce military intervention in collective bargaining negotiations, failure by two construction companies to implement a collective bargaining agreement, anti-union dismissal of union members, as well as delays in justice and the Government’s inability to ensure respect for trade union rights.
2. 518. The complainants explain that the allegations in this case refer to the Neelum-Jhelum Hydropower Project in Muzaffarabad region in Azad Jammu and Kashmir – a self-governing administrative district in Northern Pakistan. The project was developed by the Pakistan Water and Power Development Agency (WAPDA) and the construction of the power plant was undertaken by a consortium of Chinese state-owned enterprises comprising of China Gezhouba Group Company and China Machinery Engineering Corporation (hereinafter: the construction companies). The complainants allege that since the beginning of the construction, the companies failed to comply with national labour law (non-payment of the minimum wage, non-provision of contracts, etc.) which prompted the workers to form the Awami Labour Union (ALU-NJHP) in 2010. According to the complainants, in February 2010, around 700–800 workers took strike action to demand compliance with national law, as well as reinstatement of ten workers who had been previously unlawfully dismissed. Following a meeting between the union leaders and the management, an informal agreement, witnessed by the WAPDA, was reached providing for compliance with the labour law, reinstatement of the ten workers, wage increases and other benefits. However, the management of the construction companies refused to comply with the agreement, as a result of which a further strike action was taken by the ALU-NJHP in October 2011. After the strike, it was agreed that a meeting would take place between the management and the union to further negotiate but the complainants allege that inadequate protection of the right to freedom of association undermined these negotiations. In particular, they denounce that the meeting was attended by a number of military officials – the Chief Executive Officer of the construction project Lieutenant-General Muhammad Zubair, the area commander Brigadier Saaed, Major Kiani and one captain whose name is not known – who made specific threats to the union leaders and demanded they sign a document concerning the termination of a union member who had been blamed by the companies for allegedly stealing petrol but whose termination the union considered to be for anti-union reasons. The complainants consider that the fact that the military intervened in a meeting following a strike action and threatened trade union leaders amounts to a serious violation of the right to freedom of association.
3. 519. The complainants further indicate that despite the alleged military intervention and associated threats, an agreement was reached on 19 October 2011 between the ALU-NJHP and the companies’ management on a number of matters concerning working conditions at the construction site (provision of appointment letters, medical facilities, safety equipment, overtime and holiday benefits and compliance with labour law). Although the agreement was to be applied with immediate effect, the complainants denounce the companies’ failure to implement its terms and conditions for a prolonged period of time, even though they were requested to do so on numerous occasions by the union, the regional administration and the judiciary. In particular, in June 2012, the ALU-NJHP submitted an application to the Muzaffarabad Labour Court demanding implementation of the October 2011 agreement; in its decision of 3 April 2013, the Court stated that participants to the agreement are bound to act upon its terms and conditions. In May 2013, the Principal Staff Officer to the Prime Minister of Azad Jammu and Kashmir addressed a communication to the Secretary of the Industries and Labour Department in Muzaffarabad, noting that he had received a letter from the ALU-NJHP President requesting assistance in implementing the April 2013 court decision and the October 2011 agreement and demanded that appropriate necessary action be promptly taken. In June 2013, the Joint Director of Labour for Muzaffarabad directed the companies to implement the court order immediately and to report back. According to the complainants, the companies nevertheless refused to implement the agreement and the above letter of the Joint Director of Labour constitutes the only engagement of the Government to ensure compliance with the collective agreement. The complainants further indicate that in view of this continued refusal to implement the October 2011 agreement, on 20 February 2014, the ALU-NJHP began the process of negotiating a new agreement, provided the management with a charter of demands and requested for bilateral negotiations to start within ten days, as specified in section 31(2) of the Industrial Relations Order, 1974. On 3 March 2014, negotiations began and while some points were agreed on, others remained unresolved and the parties were to meet again within a week. However, the complainants allege that a month later, still no meeting had been called and the ALU-NJHP President addressed a letter to the construction companies explaining that there was great unrest among the workers working on the project.
4. 520. The complainants also allege that in response to the ALU-NJHP’s efforts to improve working conditions and conclude a collective agreement, the companies victimized trade union leaders and activists. According to the complainants, around 180 union members were unjustifiably dismissed during the duration of the construction process and in June 2012, on application of the union, the Azad Jammu and Kashmir District Labour Court granted a stay order, restraining the companies from dismissing any further workers. However, in September 2012, a further 64 workers and union members engaged by the companies’ subcontractor were terminated and the ALU-NJHP applied to the District Judge in Muzaffarabad alleging contempt of court for failure to comply with the June 2012 stay order and demanding an order of reinstatement for the 64 workers. The complainants allege that among the dismissed workers were four particularly active union officials and activists – Muhammad Abdul Rasheed, Qamar Zaman, Ghulam Murtaza and Waqas Naseem – who were terminated due to their trade union activities and without due process under Pakistani labour law. Although they have sought justice through the judicial system, their cases remain outstanding, subject to unreasonable delay. The complainants provide the following detailed information:
   • – On 2 January 2013, Muhammad Abdul Rasheed, a safety inspector employed at the construction for more than three years, was terminated from his post without complying with the process required under Pakistani labour law (the employer can terminate an employee on grounds other than misconduct provided a month’s notice is served in writing on the employee or the employee is paid one month’s wages; the employer is required to provide an order in writing explicitly stating reasons for the action taken). According to the complainants, there had been no previous complaints about Rasheed, to the contrary, he had been awarded a certificate indicating his work was more than satisfactory. Both the Director of Labour for Muzaffarabad and the ALU-NJHP President addressed a letter to the management requesting the companies to pay Rasheed’s termination benefits and an application was submitted to court on his behalf demanding his reinstatement and alleging contempt of court due to the violation of the June 2012 court order restraining the companies from dismissing further workers. This application was also supported by a letter of the Joint Director of Labour for Muzaffarabad. The complainants indicate that when on 3 April 2013, the Court issued its decision demanding the companies to comply with the collective agreement of October 2011, it did not pronounce itself on the possible contempt of court and rejected the application to set aside the notification of termination of Rasheed. The ALU-NJHP therefore lodged an appeal before the High Court/Labour Appellate Tribunal of Azad Jammu and Kashmir asking to set aside the order of 3 April 2013, declare contempt of court and order reinstatement of Rasheed. The ALU-NJHP President also sent a letter to the Prime Minister of Azad Jammu and Kashmir requesting assistance on the matter. Rasheed’s case subsequently became a core demand of the ALU-NJHP and also appeared in its charter of demands in February 2014. On 3 September 2015, the Labour Appellate Tribunal found that the court order of 3 April 2013 did not incorporate the contents of the application for initiating contempt, set it aside and remanded the case to the Muzaffarabad Labour Court to be decided anew within 60 days.
   • – On 5 December 2013, an application was filed to court regarding Qamar Zaman who was allegedly removed from service due to his trade union membership and activities, as the companies did not allow anyone to become union members and knew about the workers who were union members and their activities. A separate application was filed requesting the issuance of a stay order restraining the companies from terminating any further workers until Zaman’s case is disposed of. On 10 September 2014, the Labour Court noted that a collective agreement had been negotiated between the parties in October 2011, that no written termination was provided for Zaman’s dismissal and that the Labour Welfare Department also supported Zaman’s case. The Court thus declared the termination unlawful and void and directed the companies to follow the earlier judgment of 3 April 2013 to which both the ALU-NJHP and the companies were parties.
   • – An application was filed in the District Labour Court Muzaffarabad for Ghulan Murtaza and for Waqas Naseem on 3 February and 17 May 2014 respectively. Both applications demanded implementation of the October 2011 agreement, as well as reinstatement or payment of termination benefits of the two workers, who were allegedly dismissed verbally, without show cause notice, and due to their participation in the struggle for the workers’ rights, as the companies did not allow any workers to become members of a union. For instance, Murtaza had, on a number of occasions, approached the companies requesting them to implement the October 2011 agreement. Separate applications were also submitted to court requesting a stay order to restrain the companies from terminating any further workers during the duration of the cases.
5. 521. Finally, the complainants denounce the Government’s failure to intervene and address the pending conflicts and its active role in trade union discrimination and repression, which they perceive as part of a deliberate attempt to undermine the work of the PFBWW. They allege that poor protection of the right to freedom of association leads to a decrease in health and safety standards on infrastructure projects, which has caused the death of several tens of workers in recent years, and the inability of construction unions to successfully conclude and implement collective agreements, restricts the rise in living standards in the concerned regions.

B. The Government’s reply

1. 522. In its communications dated 11 January and 9 May 2018, the Government indicates that the alleged military intervention during collective bargaining negotiations in October 2011 was limited to attendance of a military representative to the momentary dispute with the companies but that no military action whatsoever was taken against any union bearers. After the meeting, the military was never involved in any matters relating to the hydropower project, as military involvement is not permissible under the law of Pakistan and Azad Jammu and Kashmir unless there arises a very serious law and order situation and the military is called to assist the civil administration.
2. 523. The Government further states that according to the contract concluded with one of the companies, the contractors are bound to follow the relevant labour rules and the contract administrators never compromised on labour laws, as this was never the policy of the WAPDA. Although the complainants give the impression that the construction companies violated all labour laws and commitments, the Government indicates that only some inadvertent minor mistakes might have occurred. The Government provides further details on matters that have been complied with, including payment of daily wage, bonus, overtime and religious holidays, compensation in case of injuries, free medical treatment, as well as provision of free residences and safety equipment. It also states that since the work on the project has been substantially completed, there was an overwhelming demand from the ALU-NJHP and the workers for payment of terminal benefits by the contractor of the project at the time of termination of employment and the WAPDA arranged a number of meetings between the union and the contractor for this purpose. As a result of these efforts, an agreement was signed between the parties on 20 December 2017, in which the contractor agreed to pay all benefits as per the law and around 4,000 workers have benefitted from it. The Government adds that the process has been completed in a fair and transparent manner, that there is currently no concern relating to the ALU-NJHP and that industrial relations are extremely satisfactory.
3. 524. Furthermore, the Government clarifies that while it is true that four workers were terminated, according to the companies’ record, they were not terminated on the basis of their activities in the trade union but due to poor performance. According to the companies, the complaint submitted does not accurately reflect the facts and they specify that: the workers were not punctual in their duties with unsatisfactory performance, they used to incite others not to follow the procedures and compromised safety standards. In addition, before termination, the workers were served with notices for improvement which proved ineffective. After termination, the workers resorted to court and their cases are still under litigation but any decision or ruling of the court will be implemented as per the law.

C. The Committee’s conclusions

1. 525. The Committee notes that the complainants in this case denounce military intervention in collective bargaining negotiations, failure by two construction companies to implement a collective bargaining agreement, anti-union dismissal of union members, as well as delays in justice and the Government’s inability to ensure respect for trade union rights.
2. 526. The Committee notes the complainants’ allegations that inadequate protection of the right to freedom of association undermined the collective bargaining process at the Awami Labour Union (ALU-NJHP). The complainants allege in particular that the negotiations that took place in October 2011 between the union and the employer (the construction companies) with a view to improving the working conditions at the construction site were attended by several military officials who threatened the trade union leaders and demanded they sign a document concerning the dismissal of one union member. The Committee observes that while the complainants allege that this military intervention which followed a strike action amounts to a serious violation of trade union rights, the Government indicates that although a military representative attended the meeting involving a momentary dispute with the employers, no military action was taken and that according to the law, the military may only get involved if they are called to assist in situations of serious threat to law and order. The Committee understands from this information that the presence of the military during the negotiations is not contested by either of the parties but that their views differ on the exact role played by the military. The Committee also observes that it remains unclear from the information provided why military presence during collective bargaining negotiations between the trade union and the employer was necessary, especially considering that the Government does not suggest that there was any threat to the law and order during that period. In this regard, the Committee recalls that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association and that the intervention of the army in relation to labour disputes is not conducive to the climate free from violence, pressure or threats that is essential to the exercise of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1313 and 929]. The Committee further wishes to emphasize that military presence during collective bargaining negotiations may have an intimidating effect on the parties and thereby a significant impact on the collective bargaining process as a whole, as well as on the content of any agreement concluded. In view of the above, the Committee expects the Government to take the necessary measures to ensure that in the future the military does not directly or indirectly participate in collective bargaining negotiations.
3. 527. The Committee further notes that while the complainants denounce the employers’ prolonged failure to implement the agreement concluded in October 2011, despite an intervention from the regional administration to this effect and a court order indicating that parties to the settlement are bound to act upon its terms and conditions, the Government, for its part, states that although some minor infractions to the labour law may have occurred at the construction site, the companies generally complied with national labour laws. The Committee also notes that the Government provides a list of criteria respected by the employer, including payment of adequate wages and various compensation benefits, and observes that its statement seems to suggest that at least some matters covered by the 2011 agreement or those contained in the 2014 charter of demands were in general terms implemented by the employers. The Committee further observes from the information provided by the Government that as a result of its efforts, an agreement was signed between the union and the contractor in December 2017 providing for the payment of terminal benefits to workers and that, since the project has been substantially completed, around 4,000 workers benefited from it. While noting with interest that the parties were finally able to conclude a new agreement, the Committee finds it important to recall, especially in view of the opposing views expressed above with regard to the implementation of the 2011 collective agreement, that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation, op. cit., para. 1336]. With regard to the complainants’ allegations that the companies did not fully participate in the negotiations of a new agreement in 2014, the Committee recalls that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Compilation, op. cit., para. 1330]. In light of the above and while taking due note of the fact that the construction project is at its concluding stage, the Committee expects the Government to take any necessary measures to ensure that for the remainder of the project, the December 2017 agreement concluded between the trade union and the employers is fully implemented and that, should any further negotiations take place at the construction site, the principle of bargaining in good faith will be fully respected by all parties. The Committee requests the Government to keep it informed of any developments in this regard.
4. 528. The Committee further notes that the complainants denounce unlawful dismissals of around 180 workers at the construction site during the past years, without however providing details as to the exact reasons for and circumstances of their dismissals, with the exception of four active trade union leaders and activists. In this regard, the complainants allege that they were dismissed verbally without show cause notice and thus in violation of national labour law and that their dismissals were motivated by trade union membership and activities. The Committee observes that applications were filed to court to declare the dismissals unlawful, that these applications are based on the alleged lack of a written termination notice but also refer to trade union activities of the workers and that the trials are still pending, leading the complainants to denounce the considerable delays in justice. The Committee notes, that contrary to the above allegations, the Government states that according to the companies’ records, the four workers were terminated due to their poor performance and failure to follow procedures and were also served with notice to improve their conduct before being dismissed. While observing that the complainants and the Government have opposing views on the nature of the dismissals of the four trade unionists, the Committee considers that when trade union leaders are dismissed without an indication of the motive it becomes extremely difficult for them to prove that the real motive for dismissal was to be found in their trade union activities. In these circumstances, the Committee must recall that no person should be prejudiced in employment by reason of legitimate trade union activities and cases of anti-union discrimination should be dealt with promptly and effectively by the competent institutions [see Compilation, op. cit., para. 1077]. In light of the above, the Committee requests the Government to take the necessary measures to ensure that the court cases relating to the dismissals of the four trade union leaders are rapidly concluded and effectively implemented by all parties and to provide it with copies of the final decisions. While noting that the construction project is at its concluding stage, the Committee requests the Government to ensure that trade union leaders dismissed unlawfully are reinstated without further delay or, once the project has been finalized and reinstatement is impossible for objective and compelling reasons, paid adequate compensation and any incumbent benefits.
5. 529. Finally, the Committee notes the complainants’ general allegation that the Government failed to ensure respect for trade union rights, as it did not take sufficient measures to address and remedy the above issues, including the failure by the companies to implement the collective agreement and to reinstate the dismissed workers. While observing that some measures, such as letters, appeals to the construction companies and organization of meetings, were made by the Government of Azad Jammu and Kashmir and the WAPDA, the Committee must indeed recall that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Compilation, op. cit., para. 46] and that it is thus upon the Government to take all necessary measures to this effect.