Informe definitivo - Informe núm. 244, Junio 1986

Caso núm. 1332 (Pakistán) - Fecha de presentación de la queja:: 01-MAY-85 - Cerrado

1. 64. The International Transport Workers' Federation (ITF) presented a complaint - on behalf of its various civil aviation affiliates in Pakistan - of violations of trade union rights in a communication dated 1 May 1985. Despite numerous requests to the Government for its observations on the allegations, no reply has been received.
2. 65. At its February 1986 meeting, the Committee addressed an urgent appeal to the Government for its reply and drew its attention to the fact that the Committee would present a report on the substance of the case at its next meeting even in the absence of the Government's observations (see 243rd Report, para. 10, approved by the Governing Body at its 232nd Session, February-March 1986). The Government has not replied to this urgent appeal.
3. 66. Pakistan has ratified both 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); it has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 67. In its letter of 1 May 1985, the ITF alleges that the violations of Conventions Nos. 87 and 98 of which it complained, and which the Committee examined, in Case No. 1075 against the Government of Pakistan have continued through another government enactment. Case No. 1075, states the ITF, concerned the ban on trade unions activities by employees of Pakistan International Airlines (PIA) through Martial Law Regulation No. 52 of 1981. According to the complainant the Government repealed the Regulation in 1985 but replaced it by an amendment to the Pakistan International Airlines Corporation Act, which declares employees of the Corporation to be civil servants. Trade union activities and the right to form unions are thus prohibited.
2. 68. In addition, the ITF alleges that, under the Amendment Ordinance (a copy of which it supplies), any person employed by or serving under the Corporation can be removed or retired from service at 90 days' notice without any reason being given. It states that such an action cannot be challenged before any court or other authority.

B. The Committee's conclusions

1. 69. Before examining the substance of the case, the Committee considers it necessary to recall the considerations it set out in its First Report (para. 31) and which it has several times had occasion to repeat: the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if the procedure protects governments against unreasonable accusations, governments on their side will recognise the importance of formulating for objective examination detailed replies to the substance of the allegations.
2. 70. The Committee therefore deplores the fact that the Government has not sent any reply and that it is obliged, because of the time which has elapsed, to examine the case without being able to take account of the Government's observations.
3. 71. The Committee recalls that the trade union situation of PIA employees was examined in Case No. 1075 (definitive conclusions in the Committee's 218th Report, paras. 273 to 285, approved by the Governing Body at its 221st Session, November 1982). In that case the Committee noted the Government's explanations concerning the continuing restrictions on freedom of association in the nationalised airlines sector imposed by Martial Law Regulation No. 52 and repeated its previous recommendations, namely that such restrictions, even if only of a temporary nature, constituted an infringement of freedom of association. It requested the Government to revoke as soon as possible Martial Law Regulation No. 52 of 1981 banning all trade union activity in this sector, and to send it the text of the revocation.
4. 72. The Committee also observes that the Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations have frequently criticised, in the context of Pakistan's application of Convention No. 87, the ban on trade union activities under martial law which had been in force since 1979 (but which the Committee understands was lifted as of 1 January 1986) and Martial Law Regulation No. 52 and the restrictions, in general, on the right to form unions of government employees. It, therefore, notes that the amendment to the legislation complained of in the present case (which came into force on 15 November 1984) does not remove the restrictions on the trade union activities of the PIA employees, but merely replaces the restrictions of martial law with those imposed under the public service legislation.
5. 73. The Committee recalls that by virtue of Article 2 of Convention No. 87 workers and employers, without distinction whatsoever (including all public servants), shall have the right to join organisations of their own choosing. The Committee accordingly urges the Government to initiate appropriate action to amend the Pakistan International Airlines Corporation Act so as to allow the workers concerned to establish and join organisations of their own choosing and which can function freely in the defence of their members' occupational interests. It draws this aspect of the case to the attention of the Committee of Experts for consideration under Convention No. 87.
6. 74. As regards the provision of the Amendment Ordinance empowering the Corporation to dismiss employees without giving reasons and without appeal to the courts, the Committee observes that the wording of the section leaves no doubt as to the wide discretion given to the employer. The section reads as follows:
7. (2) Notwithstanding anything contained in subsection (1) or any law, settlement or award for the time being in force, or any rules or regulations framed under this Act, or any rules, regulations, orders or instructions issued by the Corporation, or in the terms and conditions of service of any person employed by, or serving under, the Corporation, the Corporation may at any time retire or remove from its service any person without assigning any reason, after giving him an opportunity of being heard and not less than 90 days' notice or pay for the period by which such notice falls short of 90 days; and, subject to subsection (3), no such order of retirement or removal shall be called in question before any court or tribunal or other authority.
8. 75. The Committee considers that the provision is contrary to Articles 1 and 2 of Convention No. 98 in that it effectively eliminates any protection for workers against acts of anti-union discrimination in respect of their employment. The Committee has often stated that legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination by employers in order to ensure the effective application of Article 1 (see, for example, 234th Report, Case No. 1242 (Costa Rica), para. 139). Moreover, the Committee has stated that, in the case of national public enterprises, the national authorities have an additional responsibility in preventing acts of anti-union discrimination and should take appropriate measures to this effect, such as issuing a clear policy statement accompanied by specific instructions to be implemented at all levels of management (see 132nd Report, Case No. 686 (Japan), para. 81). Given that the provision in the present case specifically excludes all possibility of remedying acts of anti-union discrimination, namely dismissal and compulsory retirement, by the employer, the Committee urges the Government to take the necessary measures so as to ensure that the employer may not dismiss workers for trade union reasons and that an appeal to the courts is available to challenge the employer's unjustified actions.
9. 76. The Committee draws this section of the PIA Corporation Act to the attention of the Committee of Experts in the context of Convention No. 98.

The Committee's recommendations

1. 77. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions:
   • a) The Committee deplores the fact that the Government has not sent its observations on this case in spite of several requests to do so. The Committee has therefore been obliged to examine the case in the absence of these observations.
   • b) The Committee considers that the amendment to the Pakistan International Airlines Corporation Act, which deems all PIA employees to be civil servants and thus denies them the right to form unions or carry out union activities, violates Articles 2 and 3 of Convention No. 87.
   • c) The Committee urges the Government to initiate appropriate action to amend the PIA Corporation Act so as to allow the workers concerned to establish and join organisations of their own choosing which can function freely to defend their members' occupational interests.
   • d) The Committee considers that the amendment to the same Act which empowers the employer to dismiss or compulsorily retire PIA workers without giving reasons and without any appeal is contrary to Articles 1 and 2 of Convention No. 98.
   • e) The Committee urges the Government to take the necessary measures so as to ensure that the employer may not dismiss workers for trade union reasons and to provide for an appeal to the courts.
   • f) The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.