Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 331, Junio 2003

1. 624. In a communication dated 25 January 2002, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) filed a complaint of violations of freedom of association against the Government of Pakistan, on behalf of its affiliated organization, the Pearl Continental Hotels’ Employees’ Trade Unions Federation. The complainants submitted additional allegations in communications dated 1 February, 23 May, 3 and 17 July 2002.
2. 625. The Government provided partial observations in communications dated 3 May, 26 August and 6 November 2002. At its March 2003 meeting, the Committee issued an urgent appeal to the Government, drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case at its next meeting if the information and observations of the Government had not been received in due course [see 330th Report, para. 8].
3. 626. 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. 627. In its communications of 25 January and 1 February 2002, the IUF submits that 11 union members (including six union officials) of the Pearl Continental Hotel Workers’ Union were arrested on 7 January 2002 by the Pakistan Central Investigation Agency (CIA), in circumstances suggesting that the management of the hotel and the police are colluding in a union-busting operation. According to the complainants, the management of the Karachi Pearl Continental Hotel has been seeking to intimidate the union since September 2001, when the union was informed that a decline in bookings made it necessary to dismiss all casual and temporary workers, and to cut one day of paid work per week for permanent staff. The management ignored the union’s call for negotiations and proceeded to dismiss 350 casual workers. The union and the workers did not receive prior notice; the dismissal letter was published in a daily newspaper on 8 November and the workers were barred from entering the hotel when reporting for work the next day. With IUF support, the union responded with a broad-based campaign to obtain their reinstatement; during that campaign, the union vice-chairman was harassed by the police and violently attacked near his home.
2. 628. A fire, which damaged part of the hotel on 6 January 2002, had been initially described as a routine accident by management, which later informed the police that the fire resulted from a deliberate act of union sabotage. On 7 January, the CIA arrested Mr. Muhammad Nasir (President of the Karachi Pearl Continental Hotel Workers’ Union), Mr. Muhammad Ishaq (Vice-President), Mr. Ghulam Mehboob (General Secretary) and eight other union officers and members, six of whom were subsequently released. Following repeated public protests, Mr. Nasir was released from custody on 16 January; upon reporting for work on 21 January, he learned that he had been suspended for failing to report for work during his detention. On 23 January, Mr. Muhammad Shawaz (Social Secretary of the union) and Mr. Cheetan (member of the union) were released from custody; upon reporting for duty the following day, they were informed that they had been suspended for four days because they had not reported for work during their imprisonment. Mr. Ghulam Mehboob, Mr. Muhammad Ishaq, Mr. Bashir Hussain (Joint Secretary) and Mr. Aurangzeg (Vice-Chairman) remained in custody. Attempts were made to connect them with other unsolved criminal cases in order to keep them in indefinite detention. The union called for an impartial inquiry into the fire incident, and intervened with various authorities to stop the anti-union harassment by both the police and hotel management.
3. 629. In its communication of 23 May 2002, the IUF submits four supporting documents:
   • – a letter dated 7 January 2002 from the union to the hotel management, whereby the union requested a leave of absence for the 11 arrested union officers and members, including Mr. Nasir and other officers subsequently suspended from work for not reporting for work during their imprisonment;
   • – a letter dated 16 January 2002 to the Labour Department, setting forth the union’s position on the issues surrounding the dispute and the charges against the officers;
   • – a charge sheet for absence from duty, dated 21 January 2002, from the hotel management to Mr. Nasir, despite its knowledge that he was imprisoned as a result of the charges filed by the hotel;
   • – a letter dated 28 March 2002 from the union to the Labour Department, requesting meetings to settle outstanding issues, including the improper withholding of dues check-off.
4. 630. In its communication of 3 July 2002, the IUF explains that in April 2002, the National Industrial Relations Commission issued an order restraining the hotel management from dismissing the union officers. However that order was arbitrarily and summarily quashed by the Division Bench of the Sindh High Court on 6 June 2002. On 7 June 2002, the hotel management sent letters of dismissal to nine union officers, alleging illegal misconduct, together with the management “justification” for the discharges. The documents supporting four of these cases mention that the union officers had beaten spoons on trays in the staff cafeteria as part of the protest action. Even if proven, such an activity taking place far away from the public in the staff cafeteria does not constitute misconduct worthy of serious disciplinary action, let alone discharge. The complainants submit that these dismissals are clearly for trade union activity and that the purpose of management is to destroy the union.
5. 631. In its communication of 17 July 2002, the IUF states that on 6 July, two officers of the union who had been unfairly dismissed (Messrs. Aurangzeg and Hidayatullah) were beaten at the police station in the presence of two members of the hotel management staff, and were released after more than 26 hours of custody. Workers at the hotel reported that the police assistant superintendent spent the night following the beating at the hotel with members of the hotel management. The complainants allege that this is further evidence of the complicity between the police authorities and the hotel management in repressing union activity. The union demanded an impartial inquiry into the conduct of the police and the hotel management but have received no reply.

B. The Government’s reply

1. 632. In its communication of 3 May 2002, the Government states that, according to the reports received from the provincial authorities:
   • – the management of the hotel took action in accordance with the law and did not violate any vested rights of the workers;
   • – due to the abolition of certain posts, the management had to undergo some structural changes resulting in the termination of a number of employees, action which was taken strictly in accordance with the law;
   • – the workers were investigated by reason of a go-slow action, which is an unfair labour practice; the action taken was in accordance with the law;
   • – as a disorderly situation was created by some union leaders and members, the police had to apprehend them;
   • – upon intervention by the Labour Department, three workers (Messrs. Muhammad Ishaq, Muhammad Nawaz and Chatan Das) were released and the remaining three union officials (Messrs. Aurangzeg, Ghulam Mahboob and Bashir Hussain) were released by order of the Sindh High Court.
2. 633. In its communications of 26 August and 6 November 2002, the Government provides details on the procedures related to the go-slow action. The management of the hotel had submitted an application to the Sindh labour authorities on 28 December 2001, alleging that union officials and members of the union had started to resort to go-slow tactics. A show cause notice was issued on 11 January 2002, requesting the union to explain its position and to show cause why no action should be taken in connection with that alleged unfair labour practice. On 16 January 2002, the union submitted a reply which was not considered justified or appropriate, and the Director of Labour referred the case to the Labour Court, where the union and the management had an opportunity to explain their positions. The matter is now pending before the court.

C. The Committee’s conclusions

1. 634. The Committee regrets that, despite the time which has elapsed since the presentation of the complaint, the Government has not provided in due time the supplementary comments and information requested by the Committee, although it was invited to send its reply on several occasions, including by means of an urgent appeal at its March 2003 meeting. In these circumstances, and in accordance with the applicable rule of procedure [see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of this case, in the absence of the information it had hoped to receive in due time from the Government.
2. 635. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations concerning violations of freedom of association is to ensure respect for the rights of employers’ and workers’ organizations in law and in fact. If this procedure protects governments against unreasonable accusations, governments on their side should recognize the importance of formulating, for objective examination, detailed factual replies concerning the substance of the allegations brought against them [see First Report of the Committee, para. 31].
3. 636. The Committee notes that this complaint concerns allegations of: arrests of trade union members and leaders; anti-union intimidation, harassment and dismissals; police intervention and violence; all of which occurred in the context of an industrial dispute which started with go-slow tactics by the union, and ultimately led to the dismissal of some 350 casual workers. The complainants allege collusion between the hotel management and the police to destroy the union.
4. 637. The Committee notes that, according to the Government, the employer claimed that the dismissals were necessary due to a reduction of business, leading to the abolition of some 350 posts and a one-day cut of work per week for permanent staff. The Committee notes that the management of the hotel ignored the union’s request for negotiations and went ahead with the dismissals, which were announced through the press. While it has not been established whether or not a notice is required by law in the case of dismissal of casual workers and, if so, whether the legal notice was actually given, the Committee notes that the dismissals took place in the context of an industrial dispute related to staff reductions that had started a few months earlier, and from the Government’s indication as to the employer’s own contention, had given rise to go-slow tactics which might constitute an unfair labour practice under Pakistani law. The Committee recalls the importance of consultations or attempts to reach agreements with trade union organizations in cases of rationalization and staff reduction processes [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 936].
5. 638. As regards the management’s contention that the fire that broke out in the hotel was a deliberate act of sabotage by the union, the Committee notes that no evidence has been submitted to that effect, that no charges have been filed in this respect against the union officers and members involved, and that no independent inquiry was held into the causes and circumstances of the fire. The Committee recalls that, while the exercise of trade union activity or the holding of trade union office does not provide immunity as regards the application of ordinary criminal law, the arrest and detention of trade unionists without charges being led or court warrants being issued constitutes a serious violation of trade union rights [Digest, op. cit., para. 79], and that 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 to the exercise of trade union rights [Digest, op. cit., para. 77]. In addition, trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process [Digest, op. cit., para. 102], including the right to be presumed innocent until proven guilty [Digest, op. cit., para. 65]. The Committee requests the Government to ensure that such guarantees of due process will be applied in future.
6. 639. The Committee notes that, as a result of the arrests and detentions, nine union officers have been dismissed after the Sindh High Court reversed the order of the National Industrial Relations Commission. The Committee also notes that, according to the complainants, the facts reproached to some of the dismissed workers in the charge sheets and dismissal letters (noisy and disorderly behaviour, beating spoons on trays in the cafeteria far from the public or hotel guests) are minor ones when placed in an industrial dispute context. The Committee further observes that the management of the hotel, when suspending workers because they did not report for work, was fully aware that their absence was due to their being in custody, following charges laid by management itself. In these circumstances, the Committee concludes that the acts of the management, in particular the dismissal of trade union leaders, constituted anti-union discrimination, which is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. The Committee requests the Government to instruct the competent labour authorities to undertake rapidly an in-depth investigation of this matter 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 further requests the Government to initiate meetings between the hotel management and the trade union with a view to avoiding violations of trade union rights in the future.
7. 640. As regards the allegations of police harassment and violence, the Committee notes that, according to the complainants, the vice-chairman of the union was harassed by the police during the campaign to obtain the reinstatement of dismissed workers, that the police were colluding with the hotel management to destroy the union, and that two union members were beaten at the police station in the presence of two members of the hotel management. The Government did not provide any reply or observation on these allegations. The Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected [Digest, op. cit., para. 47]. In cases of alleged ill-treatment while in detention, governments should carry out inquiries into complaints of this kind so that appropriate measures, including compensation for damages suffered and sanctioning those responsible, are taken to ensure that no detainee is subject to such treatment 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 to the exercise of trade union rights [Digest, op. cit., paras. 57 and 77]. The Committee therefore requests the Government rapidly to carry out an inquiry into the alleged beatings of Messrs. Aurangzeg and Hidayatullah on 6 July 2002 at the police station, to keep it informed of the results of that inquiry, and to give appropriate instructions to police forces, to prevent the repetition of such acts.
8. 641. Noting that the unfair labour practice procedure concerning the go-slow tactics in December 2001 are still pending before the labour jurisdiction, the Committee requests the Government to send its observations in this respect and to provide a copy of the court decision as soon as it is issued.