Rapport intérimaire - Rapport No. 393, Mars 2021

Cas no 3018 (Pakistan) - Date de la plainte: 08-AVR. -13 - En suivi

Allegations: The complainant organization alleges anti-union actions by the management of a hotel in Karachi and the failure of the Government to ensure freedom of association

1. 581. The Committee last examined this case (submitted in 2013) at its June 2019 meeting, when it presented an interim report to the Governing Body [see 389th Report, paras 490–509, approved by the Governing Body at its 336th Session].
2. 582. The Government provided its observations in communications dated 14 October 2020 and 27 January 2021.
3. 583. 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. Previous examination of the case

1. 584. At its June 2019 meeting, the Committee made the following recommendations [see 389th Report, para. 509]:

B. The Government’s reply

1. 585. In communications dated 14 October 2020 and 27 January 2021, the Government informs about developments in the present case and reiterates that the Ministry of Overseas Pakistanis and Human Resource Development (MOPHRD) is regularly engaged with the stakeholders including the National Industrial Relations Commission, the Labour Department of the Government of Sindh, the Pakistan Workers’ Federation (PWF) and the Employers’ Federation of Pakistan (EFP), to resolve the issues between the Pearl Continental Hotel Karachi Employees Union and the Pearl Continental Hotel Karachi Management (hereafter “the Hotel management”) through social dialogue.
2. 586. In relation to the recommendation of the Committee that steps be taken to ensure that the Hotel trade union will be able to actively engage in the negotiations with the management in order to find solutions to the long-standing matters in a way that will ensure that the workers concerned are represented by persons freely chosen and elected by them (recommendation (a)), the Government informs that the Tripartite Committee constituted by the Federal Government had recommended that representatives of the PWF and the EFP help facilitate dialogue between the parties to the dispute on the many outstanding issues. As the complainant has raised concerns over the involvement of the PWF and the EFP, no significant development has been made in respect of the recommendations of the Tripartite Committee. However, the Government endeavours to ensure that the issues between the Hotel trade union and the Hotel management are settled through negotiations and by mutual consent.
3. 587. In relation to the situation of the trade union members who benefited from a reinstatement order from the Sindh Appellate Labour Tribunal in January 2013 (recommendation (b)), the Government merely reiterates that the Hotel management has maintained its appeal before the Sindh High Court against the reinstatement order. Although the reinstatement order has been challenged, the back benefits have been deposited in the Tribunal in the shape of a bank guarantee, in compliance with the Appellate Labour Tribunal’s order, and workers (except those who have attained the age of retirement) receive their monthly salary. The MOPHRD has requested the National Industrial Relations Commission (NIRC) to obtain details on the case so that it could address the Attorney General and the Registrar of the Sindh High Court to request early disposal of the case through legal channels. Once rendered, the decision of the Court will be implemented effectively, and a copy will be provided to the Committee. As previously stated, the Hotel management has informed that the entire legal dues have already been paid to several employees and has indicated its readiness to facilitate the payment of pension and settle claims of employees who have attained the age of retirement. With regard to Mr Ghulam Mehboob, General Secretary of the Hotel trade union, who retired, the Government informs that his age determination case was decided by Court and his legal dues are being calculated and shall be paid shortly. Furthermore, the Government reiterates that a number of issues raised by the union, individuals, as well as cases before the NIRC and the courts, have been mutually resolved, including the settlement of the application of seven security guards of the Hotel whose reinstatement was also ordered by the Appellate Labour Tribunal in January 2013. With regard to the five cases pending before the Compensation Commissioner of the Sindh Labour Department, South Division Karachi, the Government states that two cases relate to deduction of provident fund involving respectively 121 and nine workers and are pending a cross application. The three other cases have been filed for profit on Provident Fund involving 22 workers and are at the stage of hearing on the statement of objections.
4. 588. With regard to the 65 workers who were allegedly denied access to the workplace in the aftermath of the industrial action in March 2013 (recommendation (c)), the Government indicates that the Hotel management has been paying the salaries and other perks to the workers who have been reinstated by the Court. The cases of workers which are still pending adjudication will be settled in the light of the decision of the Court. Besides the Hotel management, the trade unions in the establishment too have filed cases which are also causing delays in the resolution of the matter. For the cases pending in the NIRC, the concerned benches have been advised by the Commission to prioritize them. In its latest communication, the Government states that among 36 workers who were on “special leave” and were not allowed to work, 32 were taken back after withdrawal of their cases, three are still under negotiation and one has died.
5. 589. As to the serious allegations of anti-union harassment and violence submitted to the Federal Tripartite Consultative Committee for necessary action (recommendation (d)), the Government refers to its previous statement indicating that the Hotel management has once again reiterated that the allegations are false and fabricated. The Tripartite Committee recommended that both parties resolve the issues through social dialogue and try to reach amicable solutions.
6. 590. With regard to the issue of the certification request lodged by the Hotel’s national union, the Government recalls that the management has challenged the decision of the NIRC on holding elections at national level to determine the collective bargaining agent before the Sindh High Court and the matter is pending adjudication due to non-appearance of either party. According to the Government, other unions in the establishment have also filed cases against each other, causing delay in the resolution of the matter. At the same time, the Hotel management has stated that all other establishments located in other parts of the country have duly elected trade unions and their collective bargaining agents with whom agreements or settlements are executed periodically as and when industrial disputes occur.

C. The Committee’s conclusions

1. 591. The Committee recalls that this case concerns serious allegations of anti-union actions including transfer and dismissal, harassment, arrest and criminal prosecution of trade union members and officials by the management of a hotel in Karachi in the Sindh Province, and ultimately the Government’s failure to ensure that the Hotel’s union and its members enjoy freedom of association.
2. 592. With regard to the situation of the trade union members who benefited from a reinstatement order from the Sindh Appellate Labour Tribunal in January 2013 (these dismissals were the object of Case No. 2169 examined by the Committee, the predecessor to this case concerning the same hotel [see 331st Report, June 2003]), the Committee notes the Government’s reiteration that the Hotel management maintained its appeal against the reinstatement order before the Sindh High Court and that the Ministry plans to intervene with the Attorney General and the Registrar in order to request early disposal of the case. The Hotel management asserts once again that the entire legal dues have already been paid to some workers and expresses its readiness to facilitate the payment of pension and settle claims of employees who have attained the age of retirement. The Government indicates that a number of issues raised by the union, individuals, as well as cases before the NIRC and the courts, have been mutually resolved, including the settlement of the application of seven security guards of the Hotel whose reinstatement was also ordered by the Appellate Labour Tribunal in January 2013. While taking note of the payment of some benefits to the concerned workers, as well as of the reaffirmed openness of the management to settle their claims, the Committee must once again express deep concern at the time that has elapsed since the Sindh Appellate Labour Tribunal upheld the 2011 ruling of the Sindh Labour Court ordering reinstatement of 21 members of the Hotel’s union, many of whom have since retired, and at the fact that the management’s appeal against this order is still pending. The Committee is bound to reiterate its firm expectation that the Sindh High Court’s decision on the Hotel management’s appeal will be rendered without further delay and requests the Government to transmit a copy of the judgment once it has been issued. Should the reinstatement order be confirmed, the Committee expects that the Government will ensure the full execution of the ruling and secure the effective reinstatement of the workers in question (or payment of pension for those who have reached the retirement age) and compensation for lost wages, as well as any damages suffered. In this regard, the Committee notes the indication that the case of Mr Ghulam Mehboob, General Secretary of the Hotel trade union, who is among the officers who benefited from the reinstatement order and is now retired, was decided by Court and that his legal dues were being calculated and shall be paid shortly. The Committee requests the Government to keep it informed of any development in this regard. It also expects detailed information from the Government on the case of the union member who died while awaiting the enforcement of the reinstatement judgment, for which the Committee made a previous recommendation that his heirs receive adequate compensation.
3. 593. In reply to its previous request on the outcome of five cases regarding claims for compensation pending before the Compensation Commissioner of the Sindh Labour Department, South Division Karachi, the Committee notes the Government’s indication that two cases relate to deduction of provident fund involving respectively 121 and nine workers and are pending a cross application. The three other cases have been filed for profit on provident fund involving 22 workers and are at the stage of hearing on the statement of objections. The Committee requests the Government to keep it informed of the outcome of these cases.
4. 594. With regard to the 65 workers who were allegedly denied access to the workplace in the aftermath of the industrial action in March 2013, the Committee recalls that several proceedings were initiated before the NIRC, that reinstatement of 32 workers was ordered but that the Hotel management obtained a stay order from the Sindh High Court and that the matter was sub judice before the Court. In its latest communication, the Government states that among 36 workers who were on “special leave” and were not allowed to work, 32 were taken back after withdrawal of their cases, three are still under negotiation and one has died. The Government indicates that the Hotel management has been paying the salaries and other perks to the workers who have been reinstated by the Court. The cases of workers which are still pending adjudication will be settled in the light of the decision of the Court. In this regard, besides the Hotel management, the trade unions in the establishment have also filed cases which are also causing delays in the resolution of the matter. For the cases pending in the NIRC, the Committee notes that the concerned benches have been advised by the Commission to prioritize them. While acknowledging the latest report from the Government on the amicable settlement reached resulting in the reinstatement of 32 workers after the withdrawal of their cases, the Committee must once again express its concern in view of the lengthy proceedings. The Committee must express its firm expectation that the Sindh High Court’s decision on the matter will be rendered without further delay and that all proceedings pending before the NIRC will be properly and expeditiously dealt with. The Committee firmly expects that the Government will provide detailed information on meaningful development concerning these proceedings or any follow-up to the recommendations of the Tripartite Committee set up by the MOPHRD in this regard.
5. 595. The Committee recalls that it had requested the Government to institute without delay an independent inquiry into the following serious allegations of anti-union harassment and violence submitted to the Federal Tripartite Consultative Committee: (i) the harassment of union members; (ii) the acts of violence on 25 February and 13 March 2013 against several members of the Hotel trade union, its General Secretary, Mr Ghulam Mehboob, and workers participating in a strike; and (iii) the subsequent brief arrest of union officers and members and filing of criminal charges against 47 of them. An independent inquiry was conducted into these allegations in April 2018 at which the Hotel management stated that it did not take any disciplinary action, did not file criminal charges and did not victimize in any other way workers involved in the 2013 incidents, who continue to be paid salaries and other benefits but some Hotel employees who disrupted law and order, were indeed arrested by the police and later released. The Committee notes that, in its latest communication, the Government merely refers to the statement of the Hotel management that the allegations are false and fabricated. From the information provided, it remains unclear to the Committee whether the independent inquiry has concluded its examination of these allegations. Therefore, the Committee requests the Government to provide without further delay concrete updated information on the outcome of the investigations and of any follow-up measures thereto.
6. 596. With regard to the certification request lodged by the Hotel’s national union in March 2017, the Committee recalls from its previous examination of the case that the Hotel management has challenged the decision of the NIRC on holding elections at national level to determine the collective bargaining agent before the Sindh High Court. The Committee also noted that following its meeting of July 2018, the Tripartite Committee established by the MOPHRD to look into the issues raised by the complainant recommended that the Hotel management recognize and work in harmony with the national union. In its latest communication, the Government informs that the matter is still pending adjudication due to non-appearance of either party. Additionally, other unions in the establishment have also filed cases against each other, causing delay in the resolution of the matter. The Committee notes with regret that these overly lengthy proceedings are undoubtedly detrimental to the conduct of sound labour relations in the Hotel and understands that initiating collective bargaining in the Hotel remains a daunting process. The Committee urges the Government to take measures to encourage and promote, in accordance with ratified Convention No.98, free and voluntary negotiations in the Hotel, with a view to the peaceful resolution of outstanding matters and for the determination of workers’ terms and conditions of employment through binding collective agreements. Emphasizing once again that one of the main objectives of workers exercising their right to organize is to bargain collectively their terms and conditions of employment and that it is incumbent on the Government to ensure that there is no undue impediment in this regard; the Committee must express its firm expectation that the decision of the Sindh High Court will be rendered without further delay and urges the Government to keep it informed of any developments regarding the recognition of the national union by the Hotel, in line with the Tripartite Committee’s recommendations.
7. 597. In its previous examination of this case, the Committee had acknowledged some initiatives on the part of the Federal Government and the Sindh Government to deal specifically with the outstanding issues. Among these initiatives, the Committee had noted that the Tripartite Committee set up by the MOPHRD to conduct an independent inquiry into the allegations recommended to involve representatives of the EFP and the PWF to promote negotiations among the parties. The Committee had noted the concerns expressed by the complainant that such involvement should not result in excluding the Hotel trade union from the negotiations and encouraged the Government to take the necessary steps to ensure that the Hotel trade union actively engage in the negotiations with the management in order to find solutions to the long-standing matters in a way that will ensure that the workers concerned are represented by persons freely chosen and elected by them. In its latest communication, the Government asserts that the objection raised by the complainant had resulted in no significant development being made in respect of the recommendations of the Tripartite Committee. However, the Government indicates that it is making earnest efforts to resolve the outstanding matters between the Hotel trade union and the management, through negotiations and mutual consent. The Committee encourages the Government to pursue its efforts, including within the Tripartite Committee set up by the MOPHRD and with the guidance of the above-mentioned umbrella organizations where appropriate, to facilitate the engagement of the parties to find solutions to the pending matters.
8. 598. In view of the time that has elapsed since the lodging of the complaint in 2013, the Committee expresses once again the firm expectation that the Government will take swift action and will be able to report meaningful progress regarding the outstanding matters in this case.

The Committee’s recommendations

1. 599. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the situation of the trade union members who benefited from a reinstatement order from the Sindh Appellate Labour Tribunal in January 2013, the Committee is bound to reiterate its firm expectation that the Sindh High Court’s decision on the management’s appeal will be rendered without further delay and requests the Government to transmit a copy of the judgment once it has been issued. Should the reinstatement order be confirmed, the Committee expects that the Government will ensure the full execution of the ruling and secure the effective reinstatement of the workers in question (or payment of pension for those who have reached the retirement age) and compensation for lost wages, as well as any damages suffered. In this regard, noting from the information provided that the case of Mr Ghulam Mehboob, General Secretary of the Hotel trade union, who is among the officers who benefited from the reinstatement order and is now retired, was decided by Court and that his legal dues were being calculated and shall be paid shortly, the Committee requests the Government to keep it informed of any development in this regard. It also requests the Government to provide detailed information on the steps taken to implement its recommendation that the heirs of the union member who died while awaiting the enforcement of the reinstatement judgment receive adequate compensation. With regard to the five cases regarding claims for compensation pending before the Compensation Commissioner of the Sindh Labour Department, the Committee requests the Government to keep it informed of the outcome of these cases.
   • (b) In view of the lengthy proceedings still pending concerning the workers who were allegedly denied access to the workplace after the events of March 2013, the Committee must express its firm expectation that the Sindh High Court’s decision on the matter will be rendered without further delay and that all proceedings pending before the NIRC will be properly and expeditiously dealt with. The Committee firmly expects that the Government will provide detailed information on meaningful development concerning these proceedings or any follow-up to the recommendations of the Tripartite Committee set up by the MOPHRD in this regard.
   • (c) The Committee requests the Government to clarify whether the Tripartite Committee established by the MOPHRD in April 2018 to conduct an independent inquiry into the allegations of anti-union harassment and violence has concluded its examination of the following allegations: harassment of union members; the acts of violence on 25 February and 13 March 2013 against several members of the Hotel trade union, its General Secretary, Mr Ghulam Mehboob and workers participating in a strike; and the subsequent brief arrest of union officers and members and filing of criminal charges against 47 of them. The Committee requests the Government to provide without further delay concrete updated information on the outcome of the investigations and of any follow-up measures thereto.
   • (d) The Committee must express its firm expectation that the decision of the Sindh High Court on the Hotel management’s appeal challenging the decision of the NIRC on holding elections at the national level to determine the collective bargaining agent will be rendered without delay and urges the Government to keep it informed of any developments regarding the recognition of the national union by the Hotel, in accordance with the Tripartite Committee’s recommendations.
   • (e) The Committee encourages the Government to pursue its effort to facilitate the engagement of the parties to find solutions to the pending matters. In view of the time that has elapsed since the lodging of the complaint in 2013, the Committee expresses once again the firm expectation that the Government will take swift action and will be able to report meaningful progress regarding the outstanding matter of this case.