Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 343, Novembre 2006

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

1. 22. The Committee examined this case at its November 2005 meeting [see 338th Report, paras. 458-470] and on that occasion, it formulated the following recommendations:
   • (a) Noting that the writ petitions filed by the concerned officials of the Bangladesh Diploma Nurses Association against the orders of transfer issued to them on 26 November 2004 are pending in the High Court Division of the Supreme Court, the Committee expects that the court will take due account in its deliberations of the provisions of Conventions Nos. 87 and 98, which have to be fully incorporated in law and practice, and requests the Government to keep it informed of the outcome of the court proceedings and to provide it with the texts of the final orders of the High Court Division in these matters. The Committee also requests the Government to take the necessary measures to ensure that the concerned trade union officials are permitted to return to their original workplaces in the event of the court deciding that the transfer orders were issued on account of their trade union activities. The Committee requests the Government to keep it informed of developments in this respect.
   • (b) The Committee requests the Government to institute immediately an independent investigation into the allegations of anti-union discrimination against the officials and members of the BDNA, having due regard to the court proceedings currently under way, and, if it is found that they were harassed and victimized for their union activities, to take suitable measures to redress the situation and ensure that these union leaders may freely discharge their trade union duties and exercise their trade union rights. The Committee requests the Government to keep it informed of the measures taken in this regard.
2. 23. In its communication of 3 May 2006, the Government of Bangladesh asserts that the transfer orders of four staff nurses were issued in the public interest. The Government indicates that according to the government service rules, every public servant may be transferred for the sake of public interest. The Government reiterates that the four aggrieved nurses filed writ petitions to the High Court Division of the Supreme Court against their transfer orders. The High Court Division stayed the transfer orders but the appellate division annulled the stay order. The nurses joined their posts to which they were transferred and are now employed by the following institutions: Ms. Krishna Beny Dey, D/o Haripada Dey, Senior Staff Nurse, deputed to the National Institute of Cardio Vascular Diseases Hospital, Dhaka; Ms. Israt Jahan, D/o Iman Ali Darbesh, Senior Staff Nurse, transferred to the National Institute of Chest Diseases and Hospital, Mohakhali, Dhaka; Mr. Golam Hossain, S/o Md. Joynal Bishwash, Senior Staff Nurse (he had no complaint against the order and is now posted in the former place); Mr. Kamaluddin, S/o Md. Kalai Akhand, Senior Staff Nurse, deputed to the Shaheed Sohorawardi Hospital, Share Bangla Nagar, Dhaka.
3. 24. The Government further refutes the complainant’s allegation that up to 200 other members of the Bangladesh Diploma Nurses Association (BDNA) were told that they would receive transfer orders.
4. 25. The Committee notes the observations transmitted by the Government and regrets that no information was provided in respect of the other six central executive members of the BDNA who were also allegedly transferred along with the abovementioned four persons. It further regrets that the Government did not give effect to the Committee’s recommendation to institute an independent investigation into the allegations of anti-union discrimination against the officials and members of the BDNA. While noting the Government’s indication that according to the government service rules, every public servant may be transferred for the sake of public interest, the Committee considers that additional measures of protection may be necessary so as to ensure that an employer cannot merely invoke “public interest” to justify the transfer of trade union officials where such measures may actually have been taken in retaliation for the legitimate exercise of trade union rights. In this regard, the Committee notes with regret that, while indicating that the stay orders issued by the High Court Division of the Supreme Court in respect of the transfers of four nurses had been annulled by the appellate division, the Government has provided no information as to whether the appellate division examined the allegations of anti-union discrimination. The Committee recalls in this regard that the transfers were ordered just two days prior to a major BDNA conference. It requests the Government to transmit a copy of the decision to annul the stay orders.
5. 26. Considering that acts of anti-trade union discrimination should not be authorized under the pretext of “public interest”, the Committee must once again emphasize that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724]. In addition, the transfer of trade union officials can have a significant negative impact upon the organizational structure of a union and its functioning. Where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy and effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754].
6. 27. The Committee expects that the Government will ensure full respect for these principles in the future. The Committee once again requests the Government to conduct an independent investigation into all allegations of anti-union discrimination suffered by the officials and members of the BDNA and if these allegations are found to be true, to provide redress for the damages suffered. The Committee requests the Government to keep it informed of the outcome of the investigation.