Informe provisional - Informe núm. 401, Marzo 2023

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

1. 140. The Committee last examined this case (submitted in April 2016) at its March 2022 meeting, when it presented an interim report to the Governing Body [see 397th Report, paras 79–94 approved by the Governing Body at its 344th Session]. 
2. 141. The Government provides its observations in communications dated 1 November 2022 and 9 and 13 February 2023.
3. 142. 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. 143. At its March 2022 meeting, the Committee made the following recommendations [see 397th Report, para. 94]:
   • (a) The Committee firmly expects that the case concerning allegations of anti-union dismissals at enterprise (b)  will be concluded without further delay and requests the Government to keep it informed of its outcome.
   • (b) The Committee urges the Government to provide a copy of the court judgement in which it indicates that no evidence was found of police wrongdoing in relation to the ill-treatment and murder of Mr Aminul Islam and to clearly indicate the manner in which the serious allegations of the involvement of the security forces in this incident were fully addressed and investigated in the framework of the concluded judicial proceedings. It also expects the Government to ensure that any allegations of this type will be rapidly and duly investigated through independent mechanisms and trusts that concrete measures will be taken to provide clear instructions to all State officials to effectively ensure prevention of any such acts.
   • (c) The Committee urges the Government once again to clearly indicate whether the specific and serious allegations of threats and violence against trade union leaders and members in a number of enterprises denounced in the complaint, including those allegedly perpetrated by the police, were duly investigated and if so, to indicate the result thereof. The Committee also firmly expects the Government to take the necessary measures to ensure that any allegations of this kind will be promptly investigated by an independent entity.
   • (d) Emphasizing once again the severe implications of prolonged court proceedings on the functioning of trade unions, the Committee firmly expects a decision to be reached without delay in relation to the court proceedings for cancellation of trade union registration of two unions at enterprise (l)  and requests the Government to provide information on the outcome of the proceedings.
   • (e) 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. 144. The Government indicates that the case concerning the allegations of anti-union dismissals at enterprise (b) was concluded on 14 December 2021, when the 2nd Labour Court, Dhaka, acquitted the defendants on the ground that many of the dismissed employees received their service benefits and there is no complaint against their employer or the accused. Regarding the delay in handling of cases in courts, the Government affirms that as the courts are overburdened, sometimes there is delay in completing the process. However, the judiciary is aware of the matters so that unreasonable delay does not happen. The judiciary is independent in scheduling the hearing of the cases and the Government has complete faith in the independent trial process of the court.
2. 145. The Government further indicates that the Minister for Law, Justice and Parliamentary Affairs (MLJPA) and the Secretary, Ministry of Labour and Employment (MOLE) have been holding a series of meetings at regular intervals to discuss and identify the issues to be addressed and to find out areas of coordination required and have been in close contact with concerned individuals/organizations for expediting the cases. The MOLE regularly sits and monitors the progress of the cases, and if required, engages the staff to expedite the trials. Recently they have conducted two meetings with officers from the MLJPA and the MOLE, the Department of Labour (DOL), the Department of Inspection of Factories and Establishments (DIFE), Central Fund, Labour Welfare Foundation and Minimum Wage Board. Moreover, the MOLE has advertised for three panel lawyers who will be hired shortly and will assist the Ministry to expedite the court cases. Finally, the Government indicates that a CFA Case Monitoring Committee has been formed which has identified cases to be expedited and transmitted to the Secretary, the MOLE and the MLJPA, where necessary direction, guidelines or follow up is required. Henceforth, this will be a continuous process.
3. 146. In relation to the murder and ill treatment of Mr Aminul Islam regarding which serious allegations of involvement of security forces were made, the Government provides a copy of the judgment of the Court of the Special Sessions Judge, Tangail District, dated 8 April 2018, containing a death sentence issued in absentia against one person found guilty of having abducted, tortured and murdered the trade union leader during the night of 4–5 April 2012. The Government also affirms that: it monitors whether the law enforcing agency and the investigating authority are prompt in addressing any serious issue, and adds that if any police officer is found involved in wrongdoing while discharging his duty, he would face departmental proceedings; allegations against members of security forces are dealt with in internal official proceedings; and if any other offence is proved, disciplinary actions are taken.
4. 147. Regarding the Committee's request concerning investigation into specific allegations of threat and violence against trade union leaders and members in several enterprises, some of which were allegedly perpetrated by the police, the Government indicates that any reported case of anti-union discrimination including threats and violence against trade union leaders are duly investigated by the Department of Labour and Employment (DOLE). The Government further reiterates that the investigation activities are done by the proper legal authority which is the police. The police department is solely responsible for investigating any criminal offences under the Code of Criminal Procedure of 1898. If there is a need for further enquiry, an application can be made to the court for enquiry by the Criminal Investigation Department (CID) and the Police Bureau of Investigation (PBI). As per court order, these two bodies can separately complete the enquiry and submit a report to the court directly. Finally, the Government indicates that the police also have mechanisms for enquiring into matters and complaints against police officials where they can be faced with departmental enquiry and punishments, if they are found responsible for negligence or any offence. The Government further reiterates its reference to the amicable settlement of the cases concerning anti-union discrimination in enterprises (d), (e), (f) and (g).
5. 148. Regarding the judicial proceedings concerning the cancellation of registration of two unions at enterprise (l), the Government indicates that the case is sub-judice and it cannot interfere in ongoing independent judicial proceeding to conclude the case. The Government once again recalls the history of the proceedings, indicating that:
6. 149. The Government further reiterates that considering the seriousness of the case it has taken measures including giving Basic Courses and in-service trainings to the members of the Bangladesh Police, which include human rights, civil liberties and trade union rights and in addition, each police official is also trained on human rights, fundamental rights and constitutional rights during their Foundation Courses. The Government further refers to the road map on the Labour Sector of Bangladesh (2021–2026), which was submitted to the ILO Governing Body in June 2021, and included elements on training and awareness-raising for security staff and the police to prevent violence, harassment, unfair labour practices and anti-union acts; development and regular updating of online databases on training programmes; development of a compendium in Bangla of the legal framework on the use of minimum force and sanctions applicable in case of violation; and continuous training and clear instructions to the Industrial Police and relevant law enforcement forces on the use of minimum force and respect of human and labour rights including trade union rights and civil liberties during labour protests.

C. The Committee’s conclusions

1. 150. The Committee notes that this case, which was first examined in 2017, 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, and lack of law.
2. 151. The Committee recalls that the complainant had alleged that since late April 2014, more than 60 workers at enterprise (b) were dismissed and had affirmed that the retaliation had escalated in March 2014 after a request had been made to management for collective bargaining. In reply to this allegation, the Government had indicated that an investigation had confirmed that the management not only deprived workers of trade union rights, but also inhumanely dismissed many of them and therefore a criminal case had been filed at the Labour Court on charges of unfair labour practices in 2014 [382nd Report, paras 153 and 161]. The Committee notes the Government’s latest indication concerning the conclusion of this case with a ruling dated 14 December 2021, when the 2nd Labour Court, Dhaka, acquitted the defendants on the ground that many of the dismissed employees received their service benefits and there is no complaint against their employer or the accused. Observing that there does not appear to have been a consideration by the court of the anti-union nature of the dismissals, the Committee recalls in this regard that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. Cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1075 and 1139]. The Committee notes with concern that in this case, where the Government investigation had found that the dismissals had taken place in the context of violation of trade union rights, the defendants were finally acquitted on the grounds that many of the dismissed workers had received their service benefits after extremely lengthy penal proceedings lasting seven years. Noting that several cases of serious anti-union dismissals observed by the Government in this case did not result in any sanction or judicial remedy after lengthy judicial proceedings, the Committee observes the steps taken by the Government as set out in its road map presented to the Governing Body within the framework of the pending article 26 complaint to expedite labour-related cases and clear backlogs through the creation of new Labour Courts, as well as the formation of the CFA Case Monitoring Committee and expects that the Government’s steps to bolster the number and resources of the labour courts will ensure in the future that rapid and effective protection against anti-union discrimination, including through penal sanctions, is provided to victims.
3. 152. Regarding the murder and ill treatment of Mr Aminul Islam in 2012, the Committee welcomes the Government transmission of a copy of the judgment, which assists the Committee in carrying out its examination in full knowledge of the facts. It notes that although the prosecution has brought charges against only one person, it does submit to the court that the accused along with other accomplices caused the death of Aminul Islam and that this was a pre-planned murder. The judge himself sums up the position of the prosecution in the following terms: “a close scrutiny of the evidences of the prosecution witnesses clearly indicates that the prosecution made out a case that the accused is the principal assailant who had prior concert and meeting of minds with his other accomplices who had been kept behind the screen to cause the death of the deceased”. The Committee further notes that another passage of the judgment provides “the popularity gained by Aminul Islam was the cause of enmity in between him and the Garments Owners Association because he used to look after the interests of the labourers and lastly, he had been the target of the aforesaid vested quarters who got executed their plan by their agent with other accomplices to cause the death of the deceased Aminul Islam”. The judge therefore finds “complicity of the accused with the commission of the crime”.
4. 153. Regarding the alleged involvement of security forces in the torture and murder of the trade union leader, the Committee notes that according to the judgment, two witnesses including Aminul Islam's wife indicated in their testimony before the court that once in 2010, the National Security Intelligence (NSI) took away Aminul Islam and tortured him; and three witnesses indicated that the accused, who was previously an Export Processing Zone worker, had become an agent and source of the Criminal Investigation Department (CID), the NSI, Bangladesh Export Processing Zone Authority, Industrial Police and other agencies. The Committee further notes in the judgment that the investigating officers who submitted the charge sheet in this case were members of the Detective Branch (DB) of the police and the CID.
5. 154. The Committee recalls that the Government had previously indicated that pursuant to the judicial process, which culminated in the conviction of the accused, no proof of involvement of security forces had been found [397th Report, para. 84]. In view of the foregoing, the Committee notes that the judgment of 8 April 2018 does not conclude as to any involvement of security forces beyond noting the testimony of witnesses, however it does expressly find that the accused was only an accomplice in the crime, while there were instigators and other accomplices “who were kept behind the screen”. The Committee further observes that the preliminary investigation of the case and evidence gathering was done by officers of the same agencies that allegedly had the accused at their service.
6. 155. The Committee notes that regarding available accountability mechanisms applicable to security forces, the Government only refers to “departmental proceedings” and “disciplinary action”. The Committee observes that these are purely administrative procedures conducted by hierarchical superiors and involve no judicial investigation or oversight nor would they entail the application of any penal sanction. Noting that in reference to traces of torture on the body of Mr Aminul Islam, the judge reached “the irresistible view that the crime indulged by the accused was undoubtedly gruesome, cold-blooded, heinous, atrocious and cruel”, the Committee deplores that no action was taken to undertake an independent judicial investigation into the serious allegations of the involvement of security forces in the abduction, torture and murder of Mr Aminul Islam. It urges the Government to take the necessary measures to ensure that such an investigation is undertaken without further delay with a view to identifying the intellectual authors of this crime in order to ensure that the responsibility for such acts do not go unpunished. The Committee trusts that the CFA Case Monitoring Committee will be able to ensure that necessary steps are taken for full investigation of this matter.
7. 156. Regarding investigations conducted into the specific and serious allegations of threats and violence against trade union leaders and members in enterprises (b), (d),  (e),  (f),  (g)  and (h),  the Committee notes with deep regret, that the Government has failed once again to provide any specific information. The Committee recalls once again that the exercise of trade union rights is incompatible with violence or threats of any kind and it is for the authorities to investigate without delay and, if necessary, penalize any act of this kind. 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, paras 88 and 105]. Noting the Government's indication that the competent authority for investigation into such cases is the police, the Committee recalls that some of the allegations concern the perpetration of acts of violence against trade union leaders by the police, and that in such cases, the investigation should be conducted by a body independent from the one accused of abuse. The Committee therefore once again urges the Government to ensure that a thorough and independent inquiry is conducted into each of the allegations referred to above.
8. 157. The Committee notes with concern that the cases concerning the cancellation of registration of two unions at enterprise (l) continue to be pending after more than eight years. It notes that in view of the enduring stay on their operation, the unions are practically deprived of their right to exist and defend their members’ interests since 2013 and 2014, respectively, even though they were lawfully registered after long administrative and judicial battles. The Committee therefore expresses once again its firm expectation that a decision will be reached in these cases without further delay and requests the Government to keep it informed of the status of the cases and their outcome and to provide copies of the judgments once they are delivered.

The Committee’s recommendations

1. 158. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following:
   • (a) Noting that several cases of serious anti-union dismissals observed by the Government in this case did not result in any sanction or judicial remedy after lengthy judicial proceedings, the Committee expects that the Government’s steps to bolster the number and resources of the labour courts will ensure in the future that rapid and effective protection against anti-union discrimination, including through penal sanctions, is provided to victims.
   • (b) The Committee deplores that no action was taken to conduct an independent judicial investigation into the serious allegations of the involvement of security forces in the abduction, torture and murder of Mr Aminul Islam and urges the Government to take the necessary measures to ensure that such an investigation is undertaken without further delay with a view to identifying the intellectual authors of this crime in order to ensure that the responsibility for such acts do not go unpunished. The Committee trusts that the CFA Case Monitoring Committee will be able to ensure that necessary steps are taken for full investigation of this matter.
   • (c) The Committee urges the Government to take the necessary measures to ensure that a thorough and independent inquiry is conducted into the specific and serious allegations of threats and violence against trade union leaders and members in enterprises (b), (d), (e), (f), (g) and (h), with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed of the steps taken in this regard.
   • (d) The Committee expresses once again its firm expectation that decisions will be reached in the cases concerning the registration of two unions at enterprise (l) without further delay and requests the Government to keep it informed of the status of the cases and their outcome and to provide copies of the judgments once they are delivered.
   • (e) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of this case.