Report in which the committee requests to be kept informed of development - REPORT_NO330, March 2003

CASE_NUMBER 2229 (Pakistan) - COMPLAINT_DATE: 04-NOV-02 - Closed

Allegations: The complainants allege the adoption of legislation contrary to freedom of association.

1. 918. The complaints are contained in communications by the Pakistan National Federation of Trade Unions (PNFTU) dated 4 and 30 November 2002, by the EOBI Employees’ Federation of Pakistan dated 18 October 2002, and the All Pakistan Federation of Trade Unions (APFTU) received 4 December 2002. The International Confederation of Free Trade Unions (ICFTU) and the International Transport Workers’ Federation (ITF) associated themselves with the complaint in communications dated 13 and 19 February 2003.
2. 919. The Government forwarded its observations in a communication dated 28 November 2002.
3. 920. 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. The complainants’ allegations

1. 921. In their communications dated 18 October, 4 and 30 November, and 4 December 2002, the Pakistan National Federation of Trade Unions (PNFTU), the EOBI Employees’ Federation of Pakistan and the All Pakistan Federation of Trade Unions (APFTU) allege that the Industrial Relations Ordinance of Pakistan (IRO) of 2002, which came to replace the Industrial Relations Ordinance of Pakistan of 1969, was imposed by the Government without taking into account proposals and suggestions made by the trade unions, as well as those made jointly by workers and employers at the level of the Workers’ and Employers’ Bilateral Council of Pakistan, and is highly restrictive contrary to Conventions Nos. 87 and 98.
2. 922. The complainants refer to the following discrepancies between the IRO of 2002 and the Conventions: restrictions on the right of workers, without distinction whatsoever, to establish and join organizations; restriction on the right of workers’ organizations to establish and join federations and confederations; interference in the internal affairs of trade unions and federations of trade unions; restrictions on the right to strike; heavy penalties imposed on trade union officers for committing unfair labour practices; insufficient protection afforded to workers against acts of anti-union discrimination; inefficient labour judiciary system and insufficient mechanisms for collective bargaining.
3. 923. In their communications, the complainants point out that the following establishments are expressly excluded from the scope of the Industrial Relations Ordinance of 2002:
   • – Bata Shoes company, when supplying shoes to the armed forces;
   • – Pakistan Security Printing Corporation;
   • – Pakistan Security Papers Ltd.;
   • – Pakistan Mint;
   • – establishment or institutions maintained for the treatment, care of sick, infirm, destitute and mentally unfit persons;
   • – institutions established for payment of employees’ old-age pensions or workers’ welfare;
   • – members of Watch and Ward, Security and Fire Services Staff of an oil refinery, or establishments engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products, or of a seaport and airport;
   • – railways, when used for defence purposes; and
   • – administration of the State.
4. 924. The APFTU further states that the new IRO does not cover workers engaged in agriculture and does not mention the lifting of a ban on suspension of trade union rights in Karachi Electric Supply Corporation, Pakistan International Air Lines, banks under section 27-B of the Banking Companies Ordinance of 1999 (Amended), and export processing zones. Those restrictions on the application of the IRO violate, according to the complainant, the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing.
5. 925. The PNFTU further indicates that according to section 3(1)(d) of the IRO, every collective bargaining agent is required to affiliate with a federation at the national level registered with the National Industrial Relations Commission within two months after it is certified as collective bargaining agent or after the promulgation of the IRO. The complainant states that this section violates the right of trade unions to join federations of their own choosing as it is possible that the collective bargaining agent may have no confidence in any registered national federation. Moreover, as confidence and close relationship take time to develop, the imposed time limit for affiliation is too short.
6. 926. The PNFTU also alleges the Government’s interference in the internal affairs of trade unions and federations of trade unions, as under section 19(1) of the IRO, accounts of a collective bargaining agent having membership of 5,000 or more are subject to an external audit by a firm of accountants appointed by the Registrar.
7. 927. The PNFTU adds that section 18 of the IRO requires registration of every federation with the National Industrial Relations Commission. Such requirement did not exist under the previous IRO and, according to the complainant, amounts to direct interference in the internal affairs of federations.
8. 928. The APFTU alleges that the right to strike has been restricted under the new law as it imposes longer time limits before the strike can be called: 15 days for a bilateral negotiation with an employer and, where the settlement is not reached, 15 days for a conciliation procedure. The complainant points out that those time limits were limited to 10-14 days under the IRO of 1969.
9. 929. The APFTU points out that section 65 of the IRO imposes on a trade union representative serious penalties for committing an unfair labour practice, defined under section 64(1)(d) as the act of compelling or attempt to compel the employer to accept any demands by using intimidation, coercion, pressure, threat, confinement or ouster from a place, dispossession, assault, physical injury, disconnection of telephone, water or power facilities or by such other methods. The sanctions that may be imposed may include disqualification of a trade union office-bearer from holding any trade union office for an unlimited term.
10. 930. The complainants further state that the new IRO runs counter to the obligation of the Government to provide to workers an adequate protection against acts of trade union discrimination. In particular, the APFTU and PNFTU allege that although section 46(5) of the new law empowers the Labour Court to award compensation to workers who were wrongfully dismissed, it does not provide for the power of the Court to order a reinstatement of the worker. The APFTU further alleges that the new law restricts the right of workers to seek interim remedies from the National Industrial Relations Commission against any “dismissal, discharge or removal from employment or transfer” based on their engagement in trade union activities, as section 49(4)(e) provides that those measures can be granted only during an industrial dispute.
11. 931. Furthermore, according to the PNFTU, the old labour judiciary system with its lengthy litigation has been maintained as the National Industrial Relations Commission is still functioning under the Ministry of Labour and the labour courts are functioning under the Provincial Labour Departments. The PNFTU also alleges that the National Industrial Relations Commission, ever since it was created under the old Industrial Relations Ordinance, has acted against the interests of workers and that despite the opposition of the majority of trade union organizations, this institution was maintained under the new Ordinance.
12. 932. The PNFTU indicates that under section 20(11) of the IRO, where a registered trade union has been certified to be collective bargaining agent, no application for a re-determination of the collective bargaining agent at the same establishment may be made for a period of three years. According to the complainant, this provision compels the collective bargaining agent to sign a collective agreement for three years. Furthermore, section 60 provides that a settlement shall be binding for two years (as opposed to one year previously) if no other period is agreed upon.

B. The Government’s reply

1. 933. In its communication of 28 November 2002, the Government states that the Industrial Relations Ordinance, which was promulgated on 26 October 2002 and which repealed the IRO of 1969, was adopted after carrying out broad consultations with all the stakeholders and keeping in view the ILO Conventions ratified by Pakistan.
2. 934. The Government states that the IRO of 2002 is applicable to all establishments excluding those that are sensitive in nature and where the Government cannot afford go-slow or strike to ensure defence of the country and supply of commodities essential for the life of the community. According to the Government, the new law enlarges the scope of coverage as certain categories of workers previously excluded from the application of the IRO, such as persons employed at the PIA (Pakistan International Airlines Corporation), and PTV and PBC (Pakistan Television and Broadcasting Corporations), are now covered by the Ordinance. Moreover, the Government states that persons employed in hospitals run on a commercial basis are also covered by the IRO of 2002.
3. 935. As concerns the role of the National Industrial Relations Commission, the Government asserts that its role has been revised to make it an effective organization with particular aim to promote a healthy trade unionism in the country.
4. 936. Furthermore, the Government states that in order to provide speedy justice, the Labour Appellate Tribunals have been abolished as recommended by the Pakistan Tripartite Labour Conference and that the high courts became appellate courts for the adjudication made in labour courts.

C. The Committee’s conclusions

1. 937. The Committee notes that the complainants in this case allege that the Industrial Relations Ordinance of Pakistan (IRO) of 2002 was imposed by the Government without taking into account proposals and suggestions made by the trade unions. The complainants further allege that the mentioned legislation violates the principles of freedom of association, particularly as concerns the right of workers, without distinction whatsoever, to establish and join organizations; right of workers’ organizations to establish and join federations and confederations; non-interference in the internal affairs of trade unions and federations of trade unions; the right to strike, protection afforded to workers against acts of anti-union discrimination; the labour judiciary system, and right to collective bargaining.
2. 938. As concerns the first allegation, the Committee notes that the complainants allege that their proposals and suggestions regarding the new legislation were not taken into account and the Government indicates that the IRO was adopted after carrying out broad consultations with all the parties concerned. In this respect, the Committee recalls the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 927]. The Committee trusts that any future consultations with social partners regarding legislation affecting trade union rights will be carried out to the satisfaction of all the parties concerned.
3. 939. As concerns the right of workers, without distinction whatsoever, to establish and join organizations, the Committee notes from the complainants’ allegations that the following establishments are expressly excluded from the scope of the Industrial Relations Ordinance of 2002: Bata Shoes company, when supplying shoes to the armed forces; Pakistan Security Printing Corporation; Pakistan Security Papers Ltd.; Pakistan Mint; establishment or institutions maintained for the treatment, care of sick, infirm, destitute and mentally unfit persons; institutions established for payment of employees’ old-age pensions or workers’ welfare; members of Watch and Ward, Security and Fire Services Staff of an oil refinery, or establishments engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products, or of a seaport and airport; railways, when used for defence purposes; and administration of the State. It further notes from the APFTU’s statement that the new IRO does not cover workers engaged in agriculture and does not mention the lifting of a ban on suspension of trade union rights in Karachi Electric Supply Corporation, Pakistan International Air Lines, banks under section 27-B of the Banking Companies Ordinance of 1999 (Amended), and export processing zones.
4. 940. The Committee notes from the Government’s statement that the IRO of 2002 is applicable to all establishments excluding those which are sensitive in nature and where the Government cannot afford go-slow or strike to ensure defence of the country and supply of commodities essential for the life of the community. According to the Government, the new law enlarges the scope of coverage as certain categories of workers previously excluded from the application of the IRO, such as persons employed at the PIA (Pakistan International Airlines Corporation), and PTV and PBC (Pakistan Television and Broadcasting Corporations), are now covered by the Ordinance. Moreover, the Government states that persons employed in hospitals run on a commercial basis are also covered by the IRO of 2002.
5. 941. The Committee understands from the Government’s statement that the exclusion from the scope of the application of the IRO is closely linked with the prohibition for workers of certain services to have recourse to strike action. In this respect, the Committee recalls that whereas the right to strike may be restricted or prohibited for certain categories of workers (in the public service only for public servants exercising authority in the name of the State, or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), the guarantee of the right of association should apply to all workers, with the exception of the members of police and armed forces. Moreover, the members of the armed forces who can be excluded from the application of Convention No. 87 should be defined in a restrictive manner; civilian workers in the manufacturing establishments or other installations or services of the armed forces should have the right to establish and join organizations of their own choosing [see Digest, op. cit., paras. 219 and 223]. The Committee requests the Government to amend its legislation so as to ensure that workers of Bata Shoes company; Pakistan Security Printing Corporation; Pakistan Security Papers Ltd.; Pakistan Mint; establishments or institutions maintained for the treatment and care of sick, infirm, destitute and mentally unfit persons; institutions established for payment of employees’ old?age pensions or workers’ welfare; members of Watch and Ward; security and fire services staff of an oil refinery; or establishments engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products, or of a seaport and airport; railways; and administration of the State, enjoy the right to establish and join organizations of their own choosing and to keep it informed in this respect. The Committee further recalls that services provided by the abovementioned establishments, with the only exception of institutions maintained for the treatment and care of sick, infirm, destitute and mentally unfit persons, cannot be considered essential.
6. 942. As regards the alleged violation of the right of workers’ organizations to establish and join federations and confederations and, more particularly, the requirement to affiliate with a federation at the national level registered with the National Industrial Relations Commission within two months after it is certified as a collective bargaining agent or after the promulgation of the IRO, the Committee recalls that the question as to whether or not to form or join a federation is a matter to be determined solely by the workers and their organizations themselves. Moreover, the fact that Article 2 of Convention No. 87 provides that workers shall have the right to establish and join organizations of their own choosing implies for the organizations themselves the right to establish and join federations of their own choosing [see Digest, op. cit., paras. 606 and 610]. The Committee therefore requests the Government to amend its legislation in order to ensure that workers’ organizations are allowed to determine themselves whether they wish to join a federation and, if that is the case, to enjoy the right to establish and join the federation of their own choosing.
7. 943. As concerns the allegation of the Government’s interference in the internal affairs of trade unions and federations of trade unions, the Committee notes two sections referred to by the complainants: section 19(1) of the IRO, according to which accounts of a collective bargaining agent having membership of 5,000 or more are subject to external audit by a firm of accountants appointed by the Registrar, and section 18, which requires registration of every federation with the National Industrial Relations Commission. The Committee notes that no observation has been received from the Government in this respect.
8. 944. Concerning the requirement of section 19, the Committee recalls that measures of administrative control over trade union assets, such as financial audits, should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude danger of excessive intervention by the authorities which might hamper a union’s exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential. The control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports [see Digest, op. cit., paras. 443 and 444]. The Committee therefore requests the Government to take the necessary measures in order to repeal this section of the IRO and keep it informed in this respect.
9. 945. Concerning the requirement of registration of every federation with the National Industrial Relations Commission, the Committee considers that when the registration of federations consists solely of a formality where the conditions are not such as to impair the guarantees laid down by Convention No. 87, such requirement would not constitute an infringement of the Convention. In the present case, the Committee notes that the IRO provides that the Registrar shall register an organization if such organization has complied with the formal requirements provided for in the IRO. In the case where the application for the registration is deficient, the IRO provides for the procedure to rectify any material flaws. An appeal to the Labour Court is also provided for in the case of refusal of registration. In this respect, the compulsory registration provided for by the IRO is in itself compatible with the Convention. However, the Committee notes that section 18 requires ten or more trade unions, with at least one from each province, to constitute a federation or confederation at the national level. The Committee recalls that the requirement of an excessively high minimum number of trade unions to establish a higher-level organization conflicts with Article 5 of Convention No. 87 and with the principles of freedom of association [see Digest, op. cit., para. 611]. The Committee considers the minimum requirement of ten trade unions, with at least one from each province, for establishment of a national federation as excessively high and therefore requests the Government to take the necessary measures so as to lower it.
10. 946. As regards the allegations of restriction of the right to strike, the Committee notes that the complainants point out that the new law imposes longer time limits before the strike can be called: 15 days for a bilateral negotiation with an employer and, where the settlement is not reached, 15 days for a conciliation procedure. The Committee requests the Government to provide information on whether there is an additional waiting period relative to strike notice before initiating a strike action and, if so, to indicate the duration.
11. 947. Regarding section 65(5) of the IRO, which provides for the possible disqualification of a trade union office-bearer from holding any trade union office throughout the following term (and not for an unlimited term as alleged by the complainants) for committing an unfair labour practice broadly defined under the IRO, the Committee considers that such a penalty runs counter to the right of workers to elect their representatives freely since the unfair labour practice referred to in section 65 of the IRO covers a wide range of conduct not necessarily making it inappropriate for persons found guilty under this section to hold a position of trust, such as trade union office. The Committee therefore requests the Government to take the necessary measures in order to repeal this section and to keep it informed in this respect.
12. 948. On the issue of protection against acts of anti-union discrimination, the Committee notes the complainants’ allegation that although section 46(5) of the IRO empowers the Labour Court to award compensation to workers who were wrongfully dismissed, it does not provide for the power of the Court to order reinstatement and that the new law restricts the right of workers to seek interim remedies from the National Industrial Relations Commission against any “dismissal, discharge or removal from employment or transfer” based on their engagement in trade union activities, as section 49(4)(e) provides that those measures can be granted only during an industrial dispute. The Committee regrets that the Government has not provided information in this respect.
13. 949. The Committee observes that section 46(5) states that in the case where the termination of employment has been held to be wrongful, the Labour Court “may award compensation […] in lieu of reinstatement of the worker” and section 48(7) provides for an appeal to the High Court of a decision of the Labour Court “directing the reinstatement of a worker or a compensation”. The Committee therefore concludes that the legislation provides for the possibility of reinstatement of workers in their jobs.
14. 950. As for the inability of the Commission to grant interim measures in case of dismissal of workers engaged in trade union activities, the Committee considers that as long as protection against anti-union discrimination is in fact ensured, the methods adopted to safeguard workers against such practices may vary from one State to another. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade unionists dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., paras. 737 and 749]. In the absence of any indication by the complainants and by the Government as to the usual length of the procedure before the Commission, the Committee points out that cases concerning anti-union discrimination should be examined rapidly, so that necessary remedies can be really effective.
15. 951. As concerns the allegation that measures of reinstatement and compensation can only be granted during an industrial dispute, the Committee requests the Government to amend its legislation so as to allow workers to seek legal remedies against the acts of anti?union discrimination at any time and not only during an industrial dispute.
16. 952. The Committee notes the complainants’ statement that despite the opposition of the majority of trade union organizations, the old labour judiciary system with its lengthy litigation was maintained and that the National Industrial Relations Commission has always acted against the interests of workers. The Committee notes that the versions provided by the two parties on this matter are mutually contradictory, as the Government indicates that the role of the National Industrial Relations Commission has been revised so as to make it an effective organization with particular aim to promote a healthy trade unionism in the country and that in order to provide speedy justice, the Labour Appellate Tribunals have been abolished as recommended by the Pakistan Tripartite Labour Conference and that the high courts became appellate courts for the adjudication made in labour courts.
17. 953. Regarding the allegations that the legal proceedings concerning labour issues are overly lengthy, the Committee recalls the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied. Furthermore, the Committee emphasizes the value of consulting organizations of workers during the preparation and application of legislation which affects their interests as well as the importance it attaches to the promotion of dialogue and consultation on matters of mutual interest between the public authorities and the workers’ organizations [see Digest, op. cit., paras. 924-929]. The Committee requests the Government to engage in full consultations with the social partners on the possible amendment of the IRO in order to resolve this issue to the satisfaction of all the parties concerned. It requests the Government to keep it informed in this respect.
18. 954. As regards the alleged violation of the right to collective bargaining, the Committee notes that there are two sets of allegations: (1) no application for determination of the collective bargaining agent at the same establishment may be made for a period of three years once a registered trade union has been certified as collective bargaining agent (section 20(11) of the IRO), this situation compelling the collective bargaining agent to sign a collective agreement for three years; and (2) the period for which collective agreements are in force, in the case where this period has not been agreed upon by the parties, has been extended by the new legislation to a period of two years (section 60). The Committee further notes that no observation on this matter has been received from the Government.
19. 955. With regard to the first set of allegations, the Committee considers that if there is a change in the relative strength of unions competing for the power to represent workers exclusively for collective bargaining purposes, then it is desirable that it should be possible to review the factual bases on which that power was granted. In the absence of such a possibility, a majority of the workers concerned might be represented by a union which, for an unduly long period, could be prevented from organizing its administration and activities with a view to fully furthering and defending the interests of its members. Moreover, where the most representative union which, enjoying exclusive bargaining rights, concluded an agreement has lost its majority and another union has in the meantime become the majority union and requests the cancellation of this agreement, it should be possible to make appropriate representations to the employer regarding the recognition of this union, notwithstanding the agreement [see Digest, op. cit., paras. 836 and 825]. The Committee therefore requests the Government to take the necessary measures so as to amend the IRO accordingly and keep it informed in this respect.
20. 956. As concerns the period for which collective agreements are in force, the Committee considers that a statutory provision providing that a collective agreement should be in force for two years when no other period has been agreed by the parties does not constitute a violation of the right to collective bargaining.
21. 957. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

The Committee's recommendations

1. 958. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights, the Committee trusts that any future consultations with social partners regarding legislation affecting trade union rights will be carried out to the satisfaction of all the parties concerned.
   • (b) The Committee requests the Government to amend its legislation so as to ensure that workers of Bata Shoes company; Pakistan Security Printing Corporation; Pakistan Security Papers Ltd.; Pakistan Mint; establishments or institutions maintained for the treatment and care of sick, infirm, destitute and mentally unfit persons; institutions established for payment of employees’ old?age pensions or workers’ welfare; members of Watch and Ward; security and fire services staff of an oil refinery; or establishments engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products, or of a seaport and airport; railways; and administration of the State, enjoy the right to establish and join organizations of their own choosing.
   • (c) The Committee requests the Government to amend its legislation in order to ensure that workers’ organizations are allowed to determine themselves whether they wish to join a federation and if that is the case to enjoy the right to establish and join the federation of their own choosing.
   • (d) Recalling that measures of administrative control over trade union assets, such as financial audits, should be applied only in exceptional cases, the Committee requests the Government to take the necessary measures in order to repeal section 19(1) of the IRO.
   • (e) The Committee requests the Government to take the necessary measures in order to lower the minimum requirement of ten trade unions, with at least one from each province, for establishment of a national federation, which it considers as excessively high.
   • (f) The Committee requests the Government to provide information on whether there is an additional waiting period relative to strike notice before initiating a strike action and, if so, to indicate the duration.
   • (g) Considering that disqualification of a trade union officer from holding any trade union office for the following term for committing an unfair labour practice, which covers a wide range of conduct not necessarily making it inappropriate for persons found guilty to hold a position of trust, such as trade union office, runs counter to the right of workers to elect their representatives freely, the Committee requests the Government to repeal section 65(5) of the IRO.
   • (h) The Committee requests the Government to engage in full consultations with the social partners on the possible amendment of the IRO in order to resolve the issue concerning the labour judiciary system to the satisfaction of all the parties concerned.
   • (i) Considering that if there is a change in the relative strength of unions competing for the power to represent workers exclusively for collective bargaining purposes, then it is desirable that it should be possible to review the factual bases on which that power was granted, the Committee requests the Government to take the necessary measures so as to amend the IRO accordingly.
   • (j) The Committee requests the Government to amend its legislation so as to allow workers to seek legal remedies against the acts of anti?union discrimination at any time and not only during an industrial dispute.
   • (k) The Committee requests the Government to keep it informed of the measures taken or envisaged on the abovementioned matters.
   • (l) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.