Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 368, Junio 2013

Caso núm. 2964 (Pakistán) - Fecha de presentación de la queja:: 07-JUN-12 - Cerrado

Allegations: The complainant organization alleges that the Registrar of Trade Unions and the National Industrial Relations Commission (NIRC) have declared the complainant trade union non-existent and issued a collective bargaining agent certificate to a rival union which had previously been defeated in the nationwide referendums held under the aegis of the NIRC

1. 770. The complaint is set out in communications by the Pakistan Wapda Hydro Central Labour Union, dated 7 June and 6 July 2012.
2. 771. The Government sent its observations in a communication dated 12 December 2012.
3. 772. 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 complainant’s allegations

1. 773. In its communication dated 7 June 2012, the Pakistan Wapda Hydro Central Labour Union explains that it is one of the eldest trade unions registered after the independence of Pakistan and is the largest national industry-wide trade union representing more than 140,000 workers employed in the largest national public utility of electricity, namely the Pakistan Water and Power Development Authority (WAPDA) and electricity companies, all over the country. The union was registered with the Registrar of Trade Unions (registration certificate No. 46 of 1973 dated 15 May 1973) under the provisions of the Industrial Relations Ordinance (IRO), 1969. The union has won nationwide referendums four times by defeating the rival union, the WAPDA Paigham Union in 1999, 2001, 2004 and 2007 (with 65 per cent of votes cast in the secret ballot at the last referendum). Its status has never been challenged by the rival union. The complainant states that it has been carrying out concerted campaigns against the proposed privatization of the national public utility of electricity and has been urging the Government to make the utility self-reliant through production of cheaper electricity through hydel and coal fired and coastal wind power houses instead of independent private power houses and rental power houses. The union has been holding large protest rallies all over the country for acceptance of these demands, and in 2012 it held three protest rallies in front of the National Parliament in Islamabad. The protest held by the union from 8 to 11 May 2012, culminated in the workers’ demands of being accepted.
2. 774. The complainant alleges that the Registrar of Trade Unions of the National Industrial Relations Commission (NIRC) passed an order dated 29 May 2012 declaring the complainant trade union as non-existent and issuing a collective bargaining agent (CBA) certificate to the rival union which has been defeated four times in the nationwide referendums held under the aegis of the NIRC. According to the complainant, the said order is contradictory since the Registrar, on one hand, has stated in the concluding paragraph of the order that the registration of the union is still to be cancelled and has asked the NIRC to undertake proceedings for cancellation of the registration of the union, and on the other hand, has stated that the union has become non-existent and certified the rival trade union as being the only union and the CBA in the utility.
3. 775. The complainant further submits that pursuant to section 11 of the Industrial Relations Act (IRA), 2012, only the NIRC is authorized to cancel the registration of a union. According to this provision:
   • 11. Cancellation of registration. (1) Subject to other provisions of this section, the registration of a trade Union may be cancelled by the Registrar if the trade union has – …
   • (2) Where the Registrar is of opinion that the registration of a trade union should be cancelled, he shall submit an application to the Commission praying for permission to cancel such registration.
   • (3) The Registrar shall cancel the registration of a trade union within seven days from the date of receipt of permission from the Commission.
4. 776. The complainant considers that the plea taken by the Registrar in the impugned order is completely unfounded on the ground that the period between the expiry of the IRA 2008 on 30 April 2010, and the promulgations of the IRO 2011, was confusing since no federal industrial relations legislation on the subject or the NIRC existed and the union had to take protection under the provincial industrial relations laws to continue to exercise its right to collective bargaining. The status of the union as a national industry-wide trade union has been revived upon the promulgation at national level of the IRO 2011, and thereafter, the IRA 2012. The registration of the union remained protected during this period. The registration certificate issued to the union was never withdrawn by the NIRC and, according to the complainant, is a conclusive proof of its legal status under section 10 of the IRA 2012, which reads as follows:
   • 10. Certificate of registration. The Registrar, on registering a trade union under section 9, shall issue a certificate of registration in the prescribed form which shall be conclusive evidence that the trade union has been duly registered under this Act.
5. 777. Furthermore, according to the complainant, the Registrar has not only himself acknowledged in the order that the legal status of the union still existed, but also stated that this union has produced the certificate of the Provincial Registrars in Punjab, Khyber Pakhtoon Khawa (KPK) and Sindh to the effect that this union has not been registered with them. The relevant portion of the orders reproduced as under:
   • 2. The application was resisted by the opposite union i.e. the Pakistan Wapda Hydro Electric Central Labour Union. Inter alia it was contended that the Pakistan Wapda Hydro Electric Central Labour Union was registered as industry-wise trade union vide registration certification No. 46 of 1973 dated 15 May 1973 issued on prescribed Form-C. The said certificate is still intact and same is exclusive evidence that the union has been duly registered under the IRO, 1969. The certificate of the union has not been cancelled. It was further alleged that the Pakistan Wapda Hydro Electric Central Labour Union has not been registered at provincial level so far. No provincial Registrar has issued any certificate of registration to the Hydro Union on the prescribed form by giving Sr. No. of registration to it, which is a condition precedent for certificate of registration.
   • 10. The learned counsel for the Hydro Union during the course of arguments produced copies of letters dated 13 April 2012, 2 May 2012 and 4 May 2012 issued by the Registrars of Provinces of Punjab, Sindh and KPK, respectively, whereby the applicants were informed as to why the Pakistan Wapda Hydro Electric Central Labour Union has not issued certificates of Registration at Provincial level.
6. 778. The complainant indicates that it has also approached the Full Bench of the NIRC to have the impugned order of the Registrar annulled. According to the complainant, the impugned order has caused great unrest and frustration among workers over the denial of fundamental trade union and collective bargaining rights and declaring the lawfully elected through nationwide referendum CBA trade union as non-existent. The complainant considers that the assertion made by the Registrar that the protected period of the CBA has already expired is not correct because section 19(11) of the IRA 2012 on the subject only provides that the referendum cannot be challenged during the period of three years. The Registrar has also ignored the fact that the union has been recognized as the CBA by the employer pursuant to section 21 of the IRA 2012. This case is still pending with the NIRC.
7. 779. The complainant further submits that the union has not only been regularly carrying out negotiation through collective bargaining with the employer, but has also been regularly holding its national executive and national general bodies meetings in accordance with its constitution. It has been submitting its reports of activities and results of election of the office bearers held by the union. The union has also been complying with section 16 of the IRA 2012, and sent its annual audited report regularly, including for the years 2010–11 as nationwide trade union. The Registrar has never raised any objection upon the legal validity of these returns sent to him regularly.
8. 780. In a communication dated 6 July 2012, the complainant informs that the union has filed a writ petition before the Islamabad High Court, to challenge the jurisdiction of the Registrar of Trade Unions of the NIRC to pass the impugned order dated 29 May 2012. The Justice of the Court has suspended the order of the Registrar and the cancellation of the registration of the Pakistan Wapda Hydro Central Labour Union. The complainant indicates that the union has also observed protest days on 30 May and 6 June 2012.

B. The Government’s reply

1. 781. In its communication dated 12 December 2012, the Government indicates that following an inquiry into the above complaint, it transpired that after the promulgation of the 18th Constitutional Amendment, the General Secretary of the Pakistan Wapda Hydro Central Labour Union moved an application on 10 June 2011 before the Registrar Trade Union in the Province of Punjab requesting to register the union in the companies of WAPDA situated in Punjab in the name of the Wapda Hydro Electric Central Labour Union Punjab Province under the Punjab Industrial Relations Act (PIRA), 2010. The Registrar, by his letter dated 21 June 2011, opined that the Pakistan Wapda Hydro Electric Labour Union Punjab Province shall deem to be a registered trade union under section 79 of PIRA, 2012 and receive a CBA status. Similarly, office bearers of Pakistan Wapda Hydro Electric Central Labour Union registered their trade unions in the Provinces of KPK, Balochistan and Sindh.
2. 782. Pakistan Wapda Employees Paigham Union, another union on the establishment, submitted an application dated 18 July 2011 before the Registrar of Trade Unions NIRC requesting for issuance of a CBA certificate in its favour, being the only union in the WAPDA establishment and having membership of more than one third of the total number of workers employed in the establishment. The Registrar, after hearing both parties, declared that the Pakistan Wapda Hydro Electric Central Labour Union had ceased to exist as an industry-wide trade union by operation of law. He also certified the applicant union as a CBA for WAPDA. The order of the Registrar, dated 29 May 2012, was challenged by the Pakistan Wapda Electric Central Labour Union before the Islamabad High Court and Balochistan High Court in Quetta. The Government indicates that as the matter is currently pending adjudication before the High Court, it cannot intervene at this stage.

C. The Committee’s conclusions

1. 783. The Committee notes that the complainant in this case, the Pakistan Wapda Hydro Electric Central Labour Union, alleges that the Registrar of Trade Unions of the NIRC has declared the complainant trade union non-existent and issued a CBA certificate to a rival union which had previously been defeated in nationwide referendums held under the aegis of the NIRC. The Committee notes the contested decision of the NIRC Bench dated 29 May 2012, which, as reproduced below, provides a good summary of the case.
   • 1. Pakistan Wapda Employees Paigham Union brought the instant application dated 18-07-2011 ... praying for issuance of CBA certificate in its favour on the ground that it is the only union in the establishment of WAPDA and having membership of more than 1/3rd of total number of workmen employed in the establishment. ... The perusal of report shows that according to the applicant union the Pakistan Wapda Hydro Electric Central Labour Union has lost its existence on the ground that four different unions at provincial level emerged out of Hydro Union and all members left it. As result of provincial unions the Pakistan Wapda Hydro Electric Central Labour Union has ceased to exist. The applicant union submitted a list of membership along with the application which shows that it has more than 1/3rd membership which is pre-requisite for the issuance of CBA certificate under Section 19(1) of IRO, 2011. He opined that applicant union may be certified as CBA being single union in the establishment of WAPDA.
   • 2. The application was resisted by the opposite union i.e. Pakistan Wapda Hydro Electric Central Labour Union. Inter alia it was contended that Pakistan Wapda Hydro Electric Central Labour Union was registered as industry-wise trade union vide registration certificate No. 46 of 1973 dated 15-05-1973 issued on prescribed Form-C. The said certificate is still intact and same is exclusive evidence that the union has been duly registered under the IRO, 1969. The certificate of the union has not been cancelled. It was further alleged that Pakistan Wapda Hydro Electric Central Labour Union has not been registered at provincial level so far. No provincial Registrar has issued any certificate of registration to the Hydro Union on the prescribed form by giving Sr. Number of registration to it, which is a condition precedent for certificate of registration.
   • ...
   • 5. The perusal of record shows that Pakistan Wapda Hydro Electric Central Labour Union was registered with this Commission as industry-wise trade union in the year 1973. The last internal election was held on 16-04-2009 for a period of two years and 65 office bearers were elected. ... It is pointed out that Mr Khurshid Ahmad the General Secretary of Pakistan Wapda Hydro Electric Central Labour Union submitted an application on 10-06-2011 before the Directorate of Labour Welfare Punjab requesting therein registration of the union in the Companies of WAPDA situated in Punjab in the name and style of ‘Wapda Hydro Electric Central Labour Union Punjab Province’ under the Punjab Industrial Relations Act, 2010. The General Secretary also submitted general body resolution dated 10-06-11 passed by the workers urging the Director of Labour Welfare Punjab for registration of the union under the law. The perusal of minutes of said general body meeting reveals that members of Hydro Union conducted the said proceedings in view of IRA, 2008 which breathed its last [sic] w.ef. 30-04-2010, the decision of Honourable Supreme Court dated 02-06-2011 and 18th Amendment in the Constitution of Islamic Republic of Pakistan whereby the Commission has become defunct. In the said general body proceedings the union claimed 70,000 members in the province of Punjab. The general body elected 25 office bearers. The general body also passed constitution of the union. In response to this application the RTU Punjab vide his letter dated 21-06-2011 opined that union namely “Pakistan Wapda Hydro Electric Central Labour Union Punjab Province” shall deemed [sic] to be registered trade union under Section 79 of PIRA 2010 including its status as CBA.
   • 6. Similarly ... an active member of Hydro Union approached the Labour Department of KPK Province with similar grounds that the NIRC is defunct body after 18th Amendment in the Constitution which has devolved the matters of unions as provincial subject and also relied upon decision of Honourable Supreme Court dated 02-06-2011. The documents of registration which were approved in the general body meeting held on 10-06-2011 at Ata Labour Hall Peshawar were also placed before the Labour Department Peshawar, asserting that members of the Hydro Union which was registered with the NIRC has now decided to register itself with the province of KPK. The members approved the constitution of the Hydro Union KPK and also elected office bearers. The membership of 20,000 was claimed in this resolution. In reply to this application the RTU KPK vide letter dated 27-06-2011 opined that Pakistan Wapda Hydro Electric Central Labour Union KPK shall deem to be registered under Section 83 of KPK IRA, 2010 including its status as CBA.
   • 7. ... Joint Secretary of Pakistan Wapda Hydro Electric Central Labour Union also forwarded documents along with application dated 04-06-2011 to the Labour Department Baluchistan at Quetta with the request that 5600 members of Pakistan Wapda Hydro Electric Central Labour Union has passed resolution on 08-05-2011 to register the trade union at provincial level under Section 86(a) of Baluchistan IRA, 2010. In this regard Hydro Union also approached the learned Labour Court Quetta. The learned Labour Court directed the RTU of Baluchistan vide order dated 15-07-2011 to register the union. The RTU in compliance to the order of learned Labour Court registered the Pakistan Wapda Hydro Electric Central Labour Union at provincial level.
   • 8. ... President of Pakistan Wapda Hydro Electric Central Labour Union approached the Sindh Labour Department with the application dated 15-06-2011 along with minutes of meeting of the general body as well as constitution of the union seeking registration of Pakistan Wapda Hydro Electric Central Labour Union at provincial level on the same grounds which were taken by aforementioned applicants in their respective applications. The union claimed its membership throughout the province of Sindh. In response Registrar of Sindh vide letter dated 24-06-2011 informed that union shall deem to be registered under Section 87 of Sindh IRA, 2010 including its status as CBA.
   • 9. All the resolutions were passed in the meetings of general bodies for registration of the Hydro Union into four unions at provincial level. Under sub-Regulation 3 of Regulation 12 of NIRC (P&F) Regulations, 1973 in case of general body approximate number of the members has to be mentioned in the proceedings in case of executive body names and signatures of office bearers who attended the meeting are required.
   • 10. In view of the situation the Pakistan Wapda Hydro Electric Central Labour Union ceased to exist as industry-wise trade union by operation of law. In all the Labour Laws starting from 1969 to IRA, 2012 “trade union” and “registered trade unions” are differently defined and for the formation of a trade union, the important prerequisite is that list of the members and names of the office bearers should be supplied. Therefore, if the members office bearers leave the union and join another union such union is left without members /office bearers. In such circumstances it looses its status as trade union on the principle that loosing the qualification prerequisite for status, the status is also lost. All members/office bearers of Pakistan Wapda Hydro Electric Central Labour Union as industry-wise trade union joined the newly formed four provincial level trade unions and thus cease to be members/office bearers of Pakistan Wapda Hydro Electric Central Labour Union as industry-wise trade union. Section 3(a) Second proviso of IRA, 2012 read as under:-
     • “Provided further that no worker shall be entitled to be a member of more than one trade union at any one time and on joining another union the earlier membership shall automatically stands cancelled”
   • The learned counsel for the Hydro Union much stressed on the point that Hydro Union has not been registered at provincial level so far. No provincial Registrar has issued any certificate of registration to the Hydro Union on the prescribed performa by giving serial numbers of the registration to it which is a condition precedent for certificate of registration. The argument of learned counsel for Hydro Union is devoid of force because in the above referred provision of law the word “trade union” is mentioned and not “registered trade union”. Therefore, it is immaterial that the unions at provincial level have not been issued certificates of registration at yet. It will not be out of place of mention here that the learned counsel for the Hydro Union frankly admitted that Pakistan Wapda Hydro Electric Central Labour Union has been registered with the Registrar of Baluchistan on the orders of learned Labour Court. The learned counsel for the Hydro Union during the course of arguments produced copies of letters dated 13-04-12, 02-05-12 and 04-05-2012 issued by Registrars of Provinces of Punjab, Sindh and KPK respectively whereby the applicants were informed as to why Pakistan Wapda Hydro Electric Central Labour Union has not been issued certificates of Registration at Provincial level. But indirectly it establishes and confirms that members / office bearers of Hydro Union did apply for registration of the unions at provincial level. It has not been mentioned that the applications for registration of the Hydro Union at provincial level were dismissed. Under the circumstances the previous letters which have been referred above issued by the Registrars of the Provinces show that the Hydro Union at provincial level shall deem to be registered under the relevant provisions of their respective Industrial Relations Acts, have great importance and can be relied upon.
   • 11. It was argued by the learned counsel for the Hydro Union that under IRA, 2008 as well as IRO, 2011 the Pakistan Wapda Hydro Electric Central Labour Union has been protected under the saving clauses of above referred labour laws. In reply to the said arguments learned counsel for the applicant union contended that saving clauses of above referred labour laws will provide protection only to those unions which were in existence at the time of promulgation of these laws. The Pakistan Wapda Hydro Electric Central Labour Union was not in existence at the time of promulgation of IRO, 2011 i.e. 18-07-2011, therefore, protection provided under Section 88 of IRO, 2011 is not available to the said Union. It was further argued that at the time of promulgation of IRO, 2011 the applicant union was the only union in existence, registered as industry-wise trade union having its membership in all the provinces, therefore, it was the only union which was protected by the Saving clause and thus it was entitled to the status of CBA under Section 19(i) of IRA, 2012 and Article 17 of the Constitution of Pakistan as well.
   • 12. Section 11 of repealed IRO, 2011 and IRA, 2012 deals with cancellation of registration of trade unions. Under Sub-Clause – of sub section (1) of Section 11 the registration of a trade union may be cancelled by the Registrar if the trade union applied for cancellation or ceased to exist. In view of aforementioned circumstances the above referred provisions of law will be attracted as the Pakistan Wapda Hydro Electric Central Labour Union ceased to be industry-wise trade union due to its own conduct.
   • ...
   • 15. In view of what has been stated above, the application merits acceptance, same is therefore, accepted and applicant union i.e. Pakistan Wapda Employees Paigham Union is certified as CBA. The certificate be issued accordingly. The Honourable Commission be moved seeking permission for the cancellation of the registration of Pakistan Wapda Hydro Electric Central Labour Union.
2. 784. The Committee notes that the Registrar’s decision is in part based on the interpretation he gave to section 3(a) of the IRA, which prohibits dual trade union membership. The Committee notes that following the Registrar’s reasoning, pursuant to section 3(a) of the IRA, members of a provincial trade union cannot be members of a national trade union. The Committee considers such an interpretation is incompatible with Article 5 of Convention No. 87, in as far as it would preclude trade unions at the provincial level to establish a national industry-wide trade union. The Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations has also considered that section 3(a) of the IRA, obliging workers to only join one trade union, could unduly prejudice their right to establish and join organizations of their own choosing and requested the Government to take the necessary measures to amend this provision so as to ensure that workers can belong to trade unions at both sectoral/provincial and national levels. The Committee requests the Government to keep it informed of all measures taken in this regard.
3. 785. The Committee observes that the order of the Registrar had the result of leaving the Pakistan Wapda Hydro Central Labour Union, without registration, both at the provincial and national level despite its historic existence in the sector, as can be noted from earlier cases brought to the Committee [see Cases Nos 1175, 1383 and 2006]. In addition, the Committee observes that the absence of a national industrial relations legislation for a certain period had created a legislative void leading to confusion as to the status of national level trade unions. In this respect, the Committee had expressed, in March 2011, its concern “over evident obstacles in the current situation for national industry-wide trade unions to exercise their rights and observes that the lack of clarity in relation to the national legislative framework for industrial relations and trade union rights could restrict the freedom of association rights of the national workers’ organization”. It further considered “that provisions should be made to ensure that national trade unions and employers’ organizations are able to exercise their activities at the national level in a legal and effective manner” [see Case No. 2799, 359th Report, paras 986 and 988].
4. 786. The Committee notes that the complainant has filed an appeal to the Islamabad High Court against the decision of the Registrar to cancel its registration and that pending the hearing, on 14 June 2012, the court suspended the order of the Registrar. The Committee considers that the fact that the union has been without registration for one year represents a serious violation and interference. The Committee expects that pending hearing before the High Court, the rights of the Pakistan Wapda Hydro Central Labour Union have been restored. The Committee also expects that the obligation of Pakistan to respect, in national legislation and practice, freedom of association principles and the Conventions which it has freely ratified will be taken into account by the High Court and that the complainant organization will be ensured the right to represent its members both at provincial and at national level as appropriate. The Committee requests the Government to keep it informed of the outcome of the decision handed down by the Islamabad High Court.

The Committee’s recommendations

1. 787. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to amend section 3(a) of the IRA 2012, so as to ensure that workers can belong to trade unions at both sectoral/provincial and national levels. It requests the Government to keep it informed of all measures taken in this regard.
   • (b) The Committee expects that pending the hearing before the High Court, the rights of the Pakistan Wapda Hydro Central Labour Union are restored. The Committee also expects that the obligation of Pakistan to respect in national legislation and practice freedom of association principles and the Conventions which it had freely ratified will be taken into account by the High Court and that the complainant organization will be ensured the right to represent its members both at provincial and at national level as appropriate. The Committee requests the Government to keep it informed of the outcome of the decision handed down by the Islamabad High Court.