Informe provisional - Informe núm. 392, Octubre 2020

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. 252. The Committee last examined this case (submitted in April 2016) at its March 2019 meeting, when it presented an interim report to the Governing Body [see 388th Report, paras 166–183, approved by the Governing Body at its 335th Session].
2. 253. The Government provides its observations in communications dated 28 May 2019, and 30 January and 15 September 2020.
3. 254. 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. 255. At its March 2019 meeting, the Committee made the following recommendations [see 388th Report, para. 183]:
   • (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.

B. The Government’s reply

1. 256. In its communications dated 28 May 2019, 30 January and 15 September 2020, the Government indicates that all cases of anti-union discrimination and unfair labour practices alleged in the case were investigated by the Department of Labour and that out of ten specific cases denounced by the complainant, seven were settled amicably (the Government provides copies of the relevant agreements with respect to enterprises (c), (d), (e), (f), (g) and (h)), two factories were found to be closed (enterprises (a) and (n)) and only two cases remain pending (in relation to enterprises (b) and (h)). With regard to the allegations of anti-union dismissals, threats, intimidation and beatings of workers at enterprise (b),  the Government reiterates that as a result of the complaint lodged by the Sramik Karmochari Union to the Joint Director of Labour (JDL), Dhaka, a criminal case was filed against the management of the enterprise in June 2014 and is currently pending, with the next hearing scheduled for 23 September 2020. As to enterprise (h),  the civil court case filed by the management of the enterprise against the president and general secretary of the company union and the JDL is still pending, it was moved from the Second Labour Court to the First Labour Court with the next hearing scheduled for 26 November 2020.
2. 257. Concerning the allegations of the involvement of members of the security forces in Mr Aminul Islam’s 2012 murder, the Government informs that the judicial process which culminated in the conviction of the accused by the Special Judges Court in April 2018 has not found any proof of involvement of the security forces in the incident and adds that the judiciary of the country is completely independent.
3. 258. The Government also provides detailed information on the registration of trade unions pursuant to the Bangladesh Labour Act, 2006 (as amended in 2013 and 2018) and the instances in which such registration can be cancelled. It states, with regard to the proceedings for cancellation of union registration in enterprise (l),  that the proceedings concerning both trade unions remain pending before the High Court Division: in one case, the enterprise requested a stay order in May 2019, which was refused but the parties were directed to remain status-quo until the disposal of the case; and in the other case, the application for extension of the order of stay from April 2019 was granted for another six months. The Government also informs that a new union was registered at the enterprise in March 2019.

C. The Committee’s conclusions

1. 259. 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 has previously decided 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 and had referred these aspects to the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts).
2. 260. The Committee notes the information provided by the Government in relation to the specific instances of alleged anti-union discrimination in ten enterprises and observes that most of the information has already been previously submitted to the Committee. With regard to the allegations of anti-union dismissals at enterprise (b) (recommendation (a)), the Committee notes that the Government simply reiterates information provided previously that based on a complaint lodged by the enterprise union a criminal case was filed against the management in June 2014 and understands that the allegations of physical assault against workers form part of these proceedings. The Committee regrets to observe that six years after the dispute was first raised with the authorities, the case is still pending and recalls that 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, para. 1139]. The Committee firmly expects that the case concerning allegations of anti-union dismissals at enterprise (b) will be concluded without further delay and trusts that the allegations of physical violence against workers will also be adequately addressed in the framework of these judicial proceedings. The Committee requests the Government to keep it informed of the outcome of the case.
3. 261. Regarding the civil court case filed by the management of enterprise (h) against the president and the general secretary of the enterprise union and the JDL Office, Dhaka, after an amicable settlement was reached in relation to the dismissal of 40 workers (recommendation (b)), the Committee observes that neither the complainant nor the Government provide detailed information on the developments in this case and that the Government simply informs that the next hearing is scheduled for 26 November 2020. While taking due note of this procedural update, the Committee wishes to underline the need for both the Government and the complainant to provide further information on any substantial developments related to the pending civil court case filed by the management of enterprise (h) against the president and the general secretary of the enterprise union and the JDL Office, Dhaka, so as to allow the Committee to pursue its examination of this aspect of the case. The Committee therefore requests the Government and the complainant to submit detailed information in this regard.
4. 262. As to the alleged involvement of the security forces in the 2012 murder of Mr Aminul Islam (recommendation (c)), the Committee notes the Government’s indication that pursuant to the judicial process, which culminated in the conviction of the accused (previously reported to the Committee), no proof of involvement of the security forces has been found. Recalling however the complainant’s specific and serious allegations that Mr Islam’s body bore signs of extensive torture and that the perpetrators of this crime also included members of the Government security apparatus [see 382nd Report, June 2017, para. 159], the Committee regrets to observe that the Government does not elaborate on the measures taken to investigate these concrete allegations. Given the seriousness of the situation, the Committee considers that further measures should have been taken in this regard and urges the Government to provide information on any measures taken, apart from the concluded court case against the accused, to investigate the specific and serious allegations of the involvement of the security forces in the ill-treatment and the 2012 murder of Mr Islam.
5. 263. Concerning the allegations of numerous instances of assault on the physical and moral integrity of workers in a number of enterprises (recommendation (d)), the Committee notes the Government's indication that the specific allegations of anti-union discrimination and unfair labour practices denounced by the complainant were fully investigated by the Department of Labour in all ten cases and notes the information provided in this respect, most of which has already been previously submitted by the Government. The Committee observes that while inquiries seem to have been conducted by MOLE officials into the allegations of unfair labour practices in each enterprise and amicable settlement has been reached in seven out of ten disputes, it remains unclear from the available information whether these investigations refer only to the allegations of anti-union discrimination or also cover the specific incidents of anti-union violence, in particular in enterprises (d), (e), (f) and (g)  (concerning allegations of intimidation, beatings and physical attacks on workers, including by the police). The Committee wishes to emphasize once again 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 [see Compilation, para. 90]. In view of the above, the Committee requests the Government to indicate whether the specific and serious allegations of threats and violence against trade union leaders and members denounced in the complaint, including those allegedly perpetrated by the police, were duly investigated and if so, to indicate the result thereof. The Committee firmly expects the Government to take the necessary measures to ensure that any future allegations of this kind will be promptly investigated by an independent entity.
6. 264. Finally, the Committee notes the detailed information provided by the Government on the procedure to obtain and cancel trade union registration according to the law (a legislative aspect of the case that had been previously referred to the Committee of Experts), as well as the Government’s indication that the proceedings for cancellation of trade union registration of two unions at enterprise (l) (recommendation (e)) are still pending and that a new trade union was registered at the enterprise in March 2019. The Committee regrets the continued delay in finalizing the judicial proceedings and the extension of the stay order, and recalls that, in its previous examination of the case, it noted with concern that the lengthy court proceedings and the enduring stay order on the operation of the unions pending the final decision had practically deprived the two unions at enterprise (l) from the right to exist and defend their members’ interests, although they had been lawfully registered in 2014. Emphasizing once again the severe implications of such prolonged court proceedings on the functioning of trade unions, the Committee firmly expects a decision to be reached in these cases without delay and requests the Government to provide information on the outcome of the proceedings.

The Committee’s recommendations

1. 265. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects that the case concerning allegations of anti-union dismissals at enterprise (b) will be concluded without further delay and trusts that the allegations of physical violence against workers will also be adequately addressed in the framework of these judicial proceedings. The Committee requests the Government to keep it informed of the outcome of the case.
   • (b) The Committee requests the Government and the complainant once again to provide detailed information on any substantive developments related to the pending civil court case filed by the management of enterprise (h) against the president and the general secretary of the enterprise union and the Joint Director of Labour Office, Dhaka, so as to allow the Committee to pursue its examination of this aspect of the case.
   • (c) The Committee urges the Government to provide information on any measures taken, apart from the concluded court case against one accused, to investigate the specific and serious allegations of the involvement of the security forces in the ill-treatment and the 2012 murder of Mr Islam.
   • (d) The Committee requests the Government to indicate whether the specific and serious allegations of threats and violence against trade union leaders and members denounced in the complaint, including those allegedly perpetrated by the police, were duly investigated and if so, to indicate the result thereof. The Committee firmly expects the Government to take the necessary measures to ensure that any future allegations of this kind will be promptly investigated by an independent entity.
   • (e) 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 these proceedings.
   • (f) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of this case.