Informe provisional - Informe núm. 360, Junio 2011

Caso núm. 2765 (Bangladesh) - Fecha de presentación de la queja:: 14-FEB-10 - Cerrado

Allegations: The complainant alleges interference by the authorities in the election of officers to its Central Executive Committee, as well as the violent suppression of demonstrations organized to protest this interference

1. 263. The complaint is contained in a communication of the Bangladesh Cha-Sramik Union (BCSU) dated 14 February 2010.
2. 264. The Government sent its observations in communications dated 16 August 2010 and 15 February 2011.
3. 265. 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 complainant’s allegations

1. 266. In its communication dated 14 February 2010, the BCSU alleges that there has been interference by the Government in its internal affairs, in violation of the tea workers’ right to association, electing their own representatives and organizing their administration and activities, as ensured under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
2. 267. More particularly, the complainant alleges that the Government approved an ad hoc committee (comprising of the candidates defeated in the trade union election) replacing the elected Central Executive Committee of the BCSU. This led to the de facto dismissal of the elected Central Executive Committee of the BCSU, giving authority to the so-called ad hoc committee to conduct a new election of the Central Executive Committee and the deliberate omission of the Government to reinstate the Central Executive Committee in its position.
3. 268. The first ever election of the BCSU was scheduled to be held on 26 October and 2 November 2008 in response to the ongoing demand by the tea workers and in due compliance with the Labour Act, 2006. An Election Commission was announced comprising of seven high-ranking government officials under the auspices of the Government. No elections of BCSU committees had ever been held since its establishment. It deserves mention that Mr Rajendra Prasad Boonerjee held different offices, such as President, General Secretary or Adviser in the BCSU without being elected for nearly three decades since 1970. Later on, his son-in-law, Mr Bijoy Boonerjee also held the position of Organizing Secretary of the current ruling party, the Awami League at Srimongal of Moulvibazar District.
4. 269. Workers from almost 156 tea gardens participated in the election. On 2 November 2008, the results of the elections were announced. The Makhon Lal Kamaker – Ramjovan Koiry’s panel was elected to the Central Executive Committee of the BCSU, defeating Bijoy Boonerjee’s panel by an overwhelming majority of votes. The results of the elections were duly communicated to various departments, directorates and secretariats of the Government. The newly elected Central Executive Committee since then has been representing the tea workers before various government authorities. The Central Executive Committee, in consultation with the tea garden owners, brought in an increase in the daily wages from 32.50 Bangladeshi taka (BDT) to BDT48 (approximately US$0.45–0.67) and two yearly allowances from BDT500 to BDT1,248 (approximately US$7–17.40).
5. 270. However, the defeated candidates, instead of cooperating, began to plot against the newly elected Central Executive Committee. At their instigation, sham cases have been filed accusing Mr Makhon Lal Karmakers and Mr Ramvojan Koiry of extortion. All of a sudden, on 25 November 2009, Mr Bijoy Boonerjee led 40–50 persons into the Head Office of the BCSU and forcibly occupied it.
6. 271. The Central Executive Committee, to their surprise, came to know that the Assistant Director of Labour, acting on behalf of the Director of Labour, issued a letter dated 24 November 2009 approving the appointment of a so-called ad hoc committee headed by Mr Bijoy Boonerjee, who was clearly defeated in the elections. The said letter also authorized the ad hoc committee to hold and conduct an election of all of the BCSU Central Executive Committee within 120 days. The letter was issued on the basis of the Minutes of a so-called Extra-Ordinary General Meeting on Requisition purported to be held on 12 July 2009. The Central Executive Committee was not at all informed of the Extra-Ordinary General Meeting. Moreover, the decision to form an ad hoc committee as stated in the minutes of the so-called Extra-Ordinary General Meeting was in violation of the BCSU’s constitution. In fact, no such meeting was ever held. The notice and minutes (mandatory under the BCSU’s constitution, articles 16 and 18) are all fabricated so as to give a legal facade to the illegal ad hoc committee. It has been widely reported that the Whip of the ruling party is involved in this matter and giving support to Mr Bijoy Boonerjee.
7. 272. According to the complainant, these acts were done in breach of the constitution of the BCSU, the national legislation and they also constitute flagrant violation of the international legal obligations of the Government to take the necessary measures to ensure the right of workers to organize freely, ensured by Convention No. 87.
8. 273. Immediately after the illegal expulsion of the Central Executive Committee, the tea workers began to mobilize in protest:
   • – On 26 November 2009, tea workers of 118 tea gardens went on strike demanding reinstatement of the Central Executive Committee. A Memorandum of Demand was presented to the Minister of Labour and Employment demanding reinstatement of the Central Executive Committee of the BCSU through the Upazilla Nirbahi Officer (government official) of Kulauara, Moulvibazar District.
   • – On 5 December 2009, a press conference was held by the tea workers under the auspices of their expelled leaders at the Western Hotel in Moulvibazar District town setting out plans for further demonstrations if the demand for reinstatement of the Central Executive Committee were not met.
   • – On 6 December 2009, a grand rally was organized in Moulvibazar District town in the face of police action. A Memorandum of Demand on behalf of the elected committees of the BCSU was presented to the Prime Minister of Bangladesh through the Deputy Commissioner of Moulvibazar District asking for appropriate remedy.
   • – On 8 December 2009, the tea workers took part in a demonstration in Sylhet District town and submitted another Memorandum of Demand to the Labour Minister again.
   • – On 9 December 2009, the tea workers organized a procession. Demonstrations were reported to be held at Kotbari of Sylhet on 13 December 2009.
   • – On 14 December 2009, the tea workers submitted another Memorandum to the Divisional Commissioner of Sylhet Division.
   • – On 20 December 2009, the tea workers went on hunger strike, demonstrated and rallied in different places of Moulvibazar District, however, they faced obstruction from the law enforcement agencies. During demonstrations, the police made baton charges on the tea workers causing injury to a number of workers. Finally, the workers presented a Memorandum to the Upazilla Nirbahi Officer of Komolgonj, Moulvibazar District.
   • – Another demonstration programme of the tea workers held at Srimongal, Moulvibazar District, was forcefully annulled by the police. It has been reported that 11 or more workers were injured due to baton charge.
9. 274. On 4 January 2010, a Memorandum of Demand was presented to the Director of Labour. The aforementioned incidents were reported in most of the national daily newspapers of Bangladesh. This situation is yet to be resolved.

B. The Government’s reply

1. 275. In its communication dated 16 August 2010, the Government indicates that, according to the constitution of the BCSU, it has completed an election on 26 October 2008 and 2 November 2008 by secret ballot on behalf of the BCSU Regulation No. B77. The Government further indicates that, after the election, the defeated party lodged a case against the election before the Labour Court of Chittagong. They urged that the election had been held unconstitutionally and required it to be cancelled.
2. 276. According to the Government, on 12 July 2009, a special meeting was called, where 51,000 Tea Plantation workers attended. In that meeting, the workers submitted their “no confidence regarding the implementation of the constitutional objectives and goals” by the BCSU elected committee. During that meeting, an ad hoc committee of 30 members was constituted by the workers. In order to be recognized by the Department of Labour, the ad hoc committee submitted a letter with related papers and a list of its members to the Director of Labour.
3. 277. Considering the circumstances, the Director of Labour constituted three individual investigation committees to investigate the reality and justification of the constitution of the ad hoc committee and the overall labour situation in tea plantation areas. The Joint Director of Labour, Chittagong Division, the Deputy Director of Labour, Labour Welfare Division for Tea Industries, Sreemongal, Moulvibazar and the Deputy Commissioner, Moulvibazar were appointed as the head of the three committees.
4. 278. From the inquiry of the three committees, the Director of Labour found the justification, reality and necessity of the ad hoc committee. Therefore, it recorded the ad hoc committee in the Department of Labour’s file and directed the holding of a new election, by a letter dated 24 November 2009 (No. RTU (160)/(part-5) 705).
5. 279. Mr Bijoy Hajra, Organizing Secretary of the BCSU and Mr Ramvojan Koiry, General Secretary, aggrieved by the Director of Labour’s decision, lodged an IRI case (No. 2 of 2010) before the Second Labour Court at Chittagong against the Director of Labour and others. After hearing the parties, the honourable Labour Court issued an order to suspend the decision of the Director of Labour which recorded the ad hoc committee.
6. 280. Mr Bijoy Boonerjee (ad hoc committee) lodged a Writ Petition (No. 1601 of 2010) before the High Court Division of the Supreme Court. The High Court stayed the decision of the Second Labour Court for six months. The case is now pending with the Labour Court.
7. 281. In its additional communication dated 15 February 2011, the Government indicates that, regarding the allegation of violent suppression of demonstrations to protest against interference in the union election, the Deputy Director of Labour, Srimongal, inquired into the matter and submitted a report to the Department of Labour. In that report, he mentioned that he had interviewed the officer-in-charge of Srimongal Thana, the convener of the BCSU and others. The officer-in-charge of Srimongal Thana had informed him that there was no such record of demonstration to protest against interference in Cha Sramik Union elections nor any violent suppression under his jurisdiction (Srimongal PS). Besides, the convener of the BCSU also stated that no such demonstration or violation occurred at Srimongal and he did not file any case against the Government of Bangladesh to the ILO or elsewhere.

C. The Committee’s conclusions

1. 282. The Committee notes that this complaint concerns allegations of interference by the authorities in the election of officers to the BCSU’s Central Executive Committee, as well as the violent suppression of demonstrations organized to protest this interference. It observes that the Government’s reply refers to disputed elections of the BCSU’s Central Executive Committee.
2. 283. Concerning the allegation of interference by the authorities in the election of officers to the BCSU’s Central Executive Committee, the Committee notes that the elections were held on 26 October and 2 November 2008, in response to the ongoing demand by the tea workers, where workers from almost 156 tea gardens participated. On that occasion, the Makhon Lal Karmakers – Ramjovan Koiry’s panel was elected to the Central Executive Committee of the BCSU, defeating Bijoy Boonerjee’s panel by an overwhelming majority of votes.
3. 284. The Committee observes that the complainant and the Government have a contradictory version concerning the special meeting that was subsequently held on 12 July 2009 and which led to the creation of an ad hoc committee and the de facto dismissal of the elected Central Executive Committee of the BCSU, giving authority to the ad hoc committee to conduct a new election of the Central Executive Committee and its approval by the Government, by a letter issued by the Assistant Director of Labour, acting on behalf of the Director of Labour, dated 24 November 2009. According to the complainant, no such special meeting was ever held and, in any case, it would not have been held in conformity with the BCSU’s constitution. In the complainant’s view, the notice and minutes appear to have been fabricated so as to give a legal façade to the illegal ad hoc committee. Conversely, the Government indicates that 51,000 tea plantation workers did attend that meeting and constituted the ad hoc committee of 30 members following an alleged no confidence vote in the BCSU’s elected committee.
4. 285. The Committee further notes the complainant’s indication that there is no scope for establishing such an ad hoc committee under the BCSU’s constitution for any purpose whatsoever let alone carrying out an election of the Central Executive Committee. Moreover, the Labour Act 2006 does not authorize the Government to approve change of officials of a trade union if such changes are made without complying with the constitution of the trade union concerned. The power to dismiss trade union officials/committees solely lies with the trade union concerned. The Committee further notes the complainant’s indication that it has on numerous occasions submitted a Memorandum of Demand to the authorities claiming reinstatement of the Central Executive Committee of the BCSU (26 November, 6, 8, 14 and 20 December 2009 and 4 January 2010) but the Government has not taken any steps to reinstate the lawfully elected Central Executive Committee.
5. 286. The Committee recalls that any intervention by the public authorities in trade union elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of workers’ organizations, which is incompatible with Convention No. 87, Article 3, which recognizes their right to elect their representatives in full freedom. More particularly, the removal by the Government of trade unions leaders from office is a serious infringement of the free exercise of trade union rights and measures taken by the administrative authorities when election results are challenged and run the risk of being arbitrary. Hence, in order to ensure an impartial and objective procedure, matters of this kind should be examined by the judicial authorities [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 429, 440 and 444].
6. 287. In this regard, the Committee notes that Mr Bijoy Hajra, Organizing Secretary of the BCSU and Mr Ramvojan Koiry, General Secretary, aggrieved by the Director of Labour’s decision, lodged an IRI case before the Second Labour Court at Chittagong against the Director of Labour and others and that, after hearing the parties, the Labour Court issued an order to suspend the decision of the Director of Labour that was in favour of the creation of the ad hoc committee. Mr Bijoy Boonerjee (ad hoc committee) lodged a Writ Petition before the High Court Division of the Supreme Court. The High Court stayed the decision of the Second Labour Court for six months and issued a rule calling upon the opposite parties to show cause as to why the impugned order should not be declared to have been made without any lawful authority. According to the Government’s indication, the case is now pending with the Labour Court. However, it did not provide any subsequent judgment or any explanations as to how the case went back to the Labour Court. The Committee recalls that, in order to avoid the danger of serious limitation on the right of workers to elect their representatives in full freedom, complaints brought before labour courts by an administrative authority challenging the results of trade union elections should not – pending the final outcome of the judicial proceedings – have the effect of suspending the validity of such elections [see Digest, op. cit., para. 441]. In these circumstances, the Committee considers that the Central Executive Committee (Makhon Lal Karmaker – Ramjovan Koiry’s panel) should be able to exercise its functions without delay and be recognized by the Government pending any decision by the judicial authorities. The Committee urgently requests the Government to provide a copy of any ruling handed down following the decision of the High Court and to keep it informed of any ruling handed down by the Labour Court in the abovementioned case, as well as to provide any additional information in this regard.
7. 288. Concerning the allegations of violent suppression of demonstrations organized to protest the interference by the authorities in the internal affairs of the BCSU, the Committee notes the various demonstrations (strike, press conference, grand rally, demonstration, procession and a hunger strike) organized by the tea workers during the month of December 2009 immediately after the expulsion of the Central Executive Committee. More particularly, the Committee notes that, on 20 December 2009, tea workers went on hunger strike, demonstrated and rallied in different places of Moulvibazar District. However, according to the complainant, the tea workers faced obstruction from law enforcing agencies. During the demonstration, the police charged with batons on the tea workers causing injury to a number of them. In addition, another demonstration of the tea workers held at Srimongal, Moulvibazar District, was forcefully annulled by the police and it has been reported that 11 or more workers were injured due to the baton charge. The aforementioned incidents have been reported in most of the national daily newspapers of Bangladesh. The Committee notes that the Government totally denies these allegations on the basis of the inquiry report of the Deputy Director of Labour, Srimongal. The information provided about the inquiry is that the officer-in-charge of Srimongal Thana, the convener of the BCSU’s ad hoc committee, Mr Boonerjee, and others, were interviewed. While the inquiry report was not provided, the Government indicates that these two persons stated that there was no such record of demonstrations to protest against interference nor had any violent suppression occurred at Srimongal.
8. 289. The Committee recalls that workers should enjoy the right to peaceful demonstrations to defend their occupational interests [see Digest, op. cit., para. 133]. In general, the use of the forces of order during trade union demonstrations should be limited to cases of genuine necessity. In cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [see Digest, op. cit., paras 49 and 150]. Considering the contradictory versions of the complainant and the report of the Deputy Director of Labour, Srimongal, with regard to the violent suppression of the demonstration to protest against interference in the union elections on 20 December 2009 in various places of Moulvibazar District and during another demonstration held in the Moulvibazar District, and considering the factual discrepancies between the conclusions of the Deputy Director of Labour and the allegations made and the newspaper clippings provided by the complainant in this regard, the Committee requests the Government to conduct a thorough and independent investigation immediately into all the allegations of violent suppression of demonstration and to keep it informed in this regard.

The Committee's recommendations

1. 290. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that the Central Executive Committee (Makhon Lal Karmaker – Ramjovan Koiry’s panel) should be able to exercise its functions without delay and be recognized by the Government pending any decision by the judicial authorities. The Committee urgently requests the Government to provide a copy of any ruling handed down following the decision of the High Court and to keep it informed of any ruling handed down by the Labour Court in the abovementioned case, as well as to provide any additional information in this regard.
   • (b) Considering the contradictory versions of the complainant and the report of the Deputy Director of Labour, Srimongal, with regard to the violent suppression of the demonstration to protest against interference in union elections on 20 December 2009 in various places of Moulvibazar District and during another demonstration held in the Moulvibazar District, and considering the factual discrepancies between the conclusions of the Deputy Director of Labour and the allegations and newspaper clippings provided by the complainant in this regard, the Committee requests the Government to conduct a thorough and independent investigation immediately into all the allegations of violent suppression of the demonstration and to keep it informed in this regard.