Informe provisional - Informe núm. 388, Marzo 2019

Caso núm. 3203 (Bangladesh) - Fecha de presentación de la queja:: 24-ABR-16 - Activo

Allegations: The complainant organization denounces the systematic violation of freedom of association rights by the Government, including through repeated acts of anti-union violence and other forms of retaliation, arbitrary denial of registration of the most active and independent trade unions and union-busting by factory management. The complainant organization also denounces the lack of law enforcement and the Government’s public hostility towards trade unions and alleges that the new draft of the Bangladesh Export Processing Zones Labour Act, 2016 is not in conformity with freedom of association and collective bargaining principles

1. 166. The Committee last examined this case at its March 2018 meeting, when it presented an interim report to the Governing Body [see 384th Report, paras 129–145, approved by the Governing Body at its 332nd Session].
2. 167. The Government sent its observations in communications dated 1 October 2018 and 4 February 2019.
3. 168. 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. Previous examination of the case

1. 169. At its March 2018 meeting, the Committee made the following recommendations [see 384th Report, para. 145]:
   • (a) The Committee requests the Government once again to take the necessary measures to ensure that, where this has not yet been done, all anti-union acts alleged in this case, including those allegedly perpetrated by the police, are fully investigated and that any future allegations of this nature, even when later resolved through bilateral agreements, are systematically and properly investigated and prosecuted so as to avoid their repetition. The Committee also requests the Government once again to provide updated information on the judicial proceedings relating to the alleged anti-union retaliation in the cases of the Sramik Karmochari Union and the union at enterprise (d)  and trusts that these cases will be concluded without delay. The Committee further expects the Government to continue to conduct comprehensive training activities in order to assist the police in better understanding the limits of their role in respect of freedom of association rights and to ensure the full and legitimate exercise by workers of these rights and liberties in a climate free from fear.
   • (b) Concerning the ongoing trial for the 2012 murder of a trade unionist, the Committee expects the trial to be conducted without further delay and requests the Government to keep it informed of its outcome.
   • (c) The Committee requests the Government once again to provide detailed information on the outcome of the proceedings for cancellation of trade union registration in enterprises (a),  (l)  and (n).  The Committee also expects the Government to take any necessary measures to ensure that the procedure available to challenge trade union registrations which had been properly granted will not be misused to halt trade union activities in the future.
   • (d) The Committee trusts that the measures envisaged and taken by the Government will contribute to an environment conducive to the full development of trade union rights and will prevent any future occurrence of public hostility and antagonism towards trade unionists.
   • (e) The Committee will not pursue the examination of the legislative aspects of this case concerning registration of trade unions and freedom of association rights in export processing zones.
   • (f) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 170. In its communication dated 1 October 2018, the Government provides information with regard to measures taken to investigate allegations of acts of anti-union discrimination, violence and retaliation in several enterprises [see 382nd Report, para. 153].
   • – With regard to allegations of violence against the acting union president and her husband at enterprise (a), the Government once again indicates that the police investigator found the allegations were unrealistic and nobody had attended before the investigating officer to prove them. The labour officials assigned to investigate the case found that the enterprise had closed due to the lack of orders from the buyer and the closure entailed the retrenchment of all workers as per Bangladesh Labour Act (BLA). All workers including the union leaders received their legal benefits.
   • – With regard to the allegations of anti-union dismissal of more than 60 workers, false criminal charges against several union leaders and physical assault against at least one union leader at enterprise (b),  the Government reiterates its previous indications concerning the complaint lodged by the Sramik Karmochari Union to the Joint Director of Labour (JDL), the ensuing investigation that established that the management deprived workers of their right to a trade union and inhumanely dismissed ten workers, and the case has been filed accordingly at the Second Labour Court, Dhaka in 2014 [see 382nd Report, para. 162]. The Government further adds that the case is still pending and the next – twenty-third – hearing date is 14 February 2019.
   • – With regard to the allegations of acts of violence against union leaders, the anti-union dismissal of 15 leaders and activists and the deliberate closure of four out of five unionized factories at enterprise (c),  the Government reiterates that the local police found the allegations were ill-motivated and that the union president had informed the labour officials that the problem was solved through bipartite discussion with the management in the presence of the buyer.
   • – With regard to the allegations of acts of violence and anti-union dismissals at enterprise (d), in relation to which three cases on charges of unfair labour practice had been filed in the First Labour Court, Dhaka, the Government indicates that as a result of the efforts of the Labour Court Legal Aid Cell, the cases were amicably settled after a few court hearings in 2015 and 2016 and the complainants withdrew their complaints.
   • – With regard to the allegations of anti-union dismissals, police violence against peaceful protesters, the police refusal to register the workers’ complaints and closure of the factory at enterprise (e),  the Government once again indicates that since September 2014 the factory remains closed due to financial problems. After the workers received their due payment the case was amicably settled and the complainants withdrew their complaints.
   • – With regard to the allegations of use of an array of retaliatory tactics by the employer including relocation of union leaders, forced resignation of workers under police pressure, threats of violence and physical assault against them and creation of a bogus union at enterprise (f),  the Government once again indicates that the investigation found that the dismissed workers were reinstated after eight months with payment of wage arrears.
   • – With regard to the allegations of anti-union dismissal and/or forced resignation of five officers of a union pending its registration procedure at enterprise (g),  the Government reiterates that it appeared from the inquiry report that the five workers had left their jobs voluntarily and that the complainants received all payments admissible as per law and withdrew their complaints.
   • – With regard to the allegations of anti-union dismissal of more than 40 union leaders and members, threats, violent attacks and false charges against them and their arrest and imprisonment because of their involvement with the union at enterprise (h),  the Government once again indicates an investigation was made and it was found that agreements were reached between the management and representatives of Biplobi Garments Federation, IndustriALL and the ACCORD pursuant to which due payment was made to 40 workers and the factory was shifted to another place. No involvement of the factory management was found with the case. The Government further adds that the management director of the company filed a civil court case challenging the president and the general secretary of the union and the JDL Office, Dhaka. The case is pending and the next hearing is scheduled for 27 February 2019.
2. 171. With regard to the trial for the murder of Mr Aminul Islam in 2012 [see 382nd Report, para. 159], the Government indicates that the final judgment was delivered and the accused was condemned to death.
3. 172. With regard to the conducting of comprehensive and continued police training, recommended by the Committee [see 384th Report, para. 145(a)], the Government indicates that the members of the Bangladesh Police are given basic courses and in-service training which include human rights, civil liberties and trade union rights and that 120 courses were arranged for different levels of industrial police between 2011 and 2017. Mid-level and senior police officials assisted 30 more courses during the same period and the total number of participants in the courses of industrial police reached 5,694.
4. 173. With regard to the proceedings for cancellation of trade unions’ registration [see 382nd Report, paras 157–158] the Government indicates that the cases concerning enterprises (l) and (n) are still pending. It further adds that on 30 November 2017 enterprise (n) closed its operation in Bangladesh.
5. 174. In reply to the Committee’s recommendation to ensure that the procedure available to challenge trade union registration will not be misused to halt trade union activities in the future, the Government indicates that pursuant to the provisions of the BLA the registrar may cancel the registration of a trade union on the grounds of unfair labour practice. The Government emphasizes that the provision of an unfair labour practice applies to both the workers and the employers and it has never been misused as there is no precedence of cancellation of registration of any union due to unfair labour practice.

C. The Committee’s conclusions

1. 175. The Committee notes that this case concerns allegations of systematic violation of freedom of association in particular through acts of violence, anti-union discrimination and other retaliatory acts against union leaders and members in numerous enterprises, arbitrary denial of union registration, union busting and misuse of available procedures to challenge union registration, lack of law enforcement and the Government’s public hostility towards trade unions. The Committee recalls that it decided in its previous examination of this case not to pursue the examination of the legislative aspects of the complaint concerning registration of trade unions and freedom of association rights in export processing zones that it had referred to the Committee of Experts on the Application of Conventions and Recommendations.
2. 176. The Committee notes the Government's indications with regard to the allegations of acts of violence, retaliation and anti-union discrimination in enterprises (a)–(h). It notes that in the cases of enterprises (a) and (e), the factory was closed due to alleged financial problems and in the case of enterprise (h) the factory was moved to another place. The Committee further notes that allegations of anti-union dismissal or forced resignation were made in relation to enterprises (b), (c), (d), (e), (f), (g) and (h). The Government indicates that in enterprises (c), (d), (e), (g) and (h) the issues were resolved through discussion or amicable settlement and the complainants withdrew their complaints. At enterprise (f) the dismissed workers were reinstated with payment of arrears. Only the case concerning anti-union dismissals at enterprise (b) remains unsettled as it is pending before the Labour Court since 2014.
3. 177. While the Committee does not consider that amicable settlement of disputes concerning anti-union dismissals is per se contrary to the principles of freedom of association, it is bound to recall that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress [see the Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1165]. The Committee notes that in the present case, from the seven enterprises against which allegations of anti-union dismissal were raised, five were resolved through amicable settlement while one case resulted in the reinstatement of the dismissed workers. The remaining complaint concerning enterprise (b) is still pending before the Labour Court five years after the dispute was first raised with the authorities. In view of the above, the Committee firmly expects the Government to ensure that rapid and effective remedies are available to victims of anti-union discrimination and that the case concerning anti-union dismissals at enterprise (b) will be concluded without further delay. It requests the Government to keep it informed of the measures taken and the developments in this regard.
4. 178. The Committee further notes the Government's indication that despite the amicable settlement reached in relation to the dismissed workers in enterprise (h) a civil court case challenging the president and the general secretary of the company union and the JDL Office, Dhaka filed by the management director of the enterprise remains pending. The Committee requests the Government to provide detailed information on developments in this regard.
5. 179. The Committee recalls that allegations of threats and violence against workers, in particular union leaders and members, were made regarding all eight enterprises (a) to (h). The Committee notes in this regard the Government’s indication that in the cases of enterprises (a) and (c) the police found that the allegations of violence could not be substantiated or were ill-motivated. In the case of enterprise (h) – where it was alleged that the management collaborated with criminal elements in the community to force union leaders to resign or stop union activities through violence and intimidation – the Committee notes the Government’s indication that no involvement of factory management was found with the case. The Committee further notes that the Government does not provide information about any investigation being conducted into the allegations of violence targeting union leaders and members in the other enterprises and regrets that it would appear that the Government has failed to fulfil its responsibility in this regard.
6. 180. The Committee further notes the Government’s indication about the conclusion of the trial for the 2012 murder of Mr Aminul Islam. The Committee understands that the accused, who was tried in abstentia, was condemned to death. Recalling the complainant’s allegation that Mr Islam’s body bore signs of extensive torture and that strong evidence indicated that he was targeted for his work as a labour organizer and human rights advocate and that the perpetrators of this crime included members of the government security apparatus [see 382nd Report, paras 157–159], the Committee deplores that the Government does not provide any information in reply to the extremely serious allegations of the involvement of the members of the security forces in this murder. It urges the Government to provide information with regard to any investigation made into these allegations and their outcome.
7. 181. The Committee recalls that acts of intimidation and physical violence against trade unionists constitute a grave violation of the principles of freedom of association and the failure to protect against such acts amounts to a de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights. In the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Compilation, sixth edition, 2018, paras 90 and 105]. The Committee also recalls that in its previous examination of this case, it had requested the Government to take the necessary measures to ensure that, where this has not yet been done, all anti-union acts alleged in this case, including those allegedly perpetrated by the police, are fully investigated. The Committee regrets the Government’s failure to provide information in respect of this recommendation, in particular with regard to the allegations of acts of violence perpetrated against union members and leaders. It firmly expects the Government to take the necessary measures to ensure that an independent inquiry is immediately instituted in all cases of assault on the physical or moral integrity of workers, so that the facts are clarified, those responsible are identified and punished and such acts are not repeated in the future. The Committee requests the Government to keep it informed of the measures taken in this regard.
8. 182. With regard to cancellation of certain unions’ registration, the Committee notes the Government’s indication that enterprise (a), has closed while the proceedings for cancellation of trade unions’ registration in enterprises (l) and (n) are still pending as well as its assurances that the procedure available to challenge trade union registrations has never been misused as there is no precedence of cancellation of registration of any union due to an unfair labour practice. The Committee, however, recalls the complainant’s allegation that besides such cases, injunctive relief is frequently sought from courts to stay union registrations that have been properly granted [see 382nd Report, paras 157–158]. In particular, the Committee recalls the allegations, confirmed by the Government, that after enterprise (l) appealed the registration of two unions, a stay order was issued on the operation of the unions pending the decision of the court, which according to the Government is still pending. The Committee notes with concern that the lengthy court proceedings and the enduring stay order on the operation of the unions pending the final decision have practically deprived the two unions at enterprise (l) from the right to exist and defend their members’ interests, although they were lawfully registered in 2014. The Committee therefore once again requests the Government to take the necessary measures to ensure that the procedure available to challenge trade union registrations which had been properly granted will not be misused to halt trade union activities in the future and, expecting that a decision will be reached in this case in the near future, requests the Government to provide detailed information on the outcome of the proceedings for cancellation of union registration in enterprise (l).

The Committee’s recommendations

1. 183. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects the Government to ensure that rapid and effective remedies are available to victims of anti-union discrimination and that the case concerning anti-union dismissals at enterprise (b) will be concluded without further delay. It requests the Government to keep it informed of the measures taken and the developments in this regard.
   • (b) The Committee requests the Government and the complainants to provide detailed information on developments related to the pending civil court case filed by the management director of enterprise (h) against the president and the general secretary of the company union and the JDL Office, Dhaka.
   • (c) The Committee urges the Government to provide detailed information with regard to any investigations made into the allegations of the involvement of the members of the security forces in Mr Aminul Islam’s murder and their outcome.
   • (d) The Committee firmly expects the Government to take the necessary measures to ensure that an independent inquiry is immediately instituted in all cases of assault on the physical or moral integrity of workers, so that the facts are clarified, those responsible are identified and punished and such acts are not repeated in the future. The Committee requests the Government to keep it informed of the measures taken in this regard.
   • (e) The Committee once again requests the Government to take the necessary measures to ensure that the procedure available to challenge trade union registrations which had been properly granted will not be misused to halt trade union activities in the future and, expecting that a decision will be reached in this case in the near future, requests the Government to provide detailed information on the outcome of the proceedings for cancellation of union registration in enterprise (l).
   • (f) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of this case.