Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 295, Novembre 1994

Cas no 1771 (Pakistan) - Date de la plainte: 26-AVR. -94 - Clos

1. 482. In a communication dated 26 April 1994, the National Labour Federation of Pakistan (NLF) submitted a complaint of violations of freedom of association against the Government of Pakistan. The NLF supplied additional information concerning the allegations in this case in a communication received on 6 June 1994. The Government sent its observations in a communication dated 24 July 1994.
2. 483. Pakistan has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 484. In its complaint of 26 April 1994, the NLF alleges that the Government has violated Conventions Nos. 87 and 98 with respect to workers employed by Pakistan Steel, Pakistan Railways and Pakistan International Airlines.
   • Pakistan Steel
2. 485. On behalf of the Pakistan Steel Labour Union, an affiliate of the NLF, the complainant alleges that two collective agreements signed on 5 November 1988 and 17 October 1990 respectively, as well as a supplementary agreement signed on 26 October 1989, were unilaterally annulled by the new management in 1992. Furthermore, the NLF claims that, at the same time, over 7,000 workers were promoted to the "officers' cadre" so that they would be disqualified from membership in any trade union in the company and thus weaken the trade union movement. As a result, despite applications from the trade unions to hold a vote in order to determine the Collective Bargaining Agent (CBA), the voter list has not yet been finalized and therefore no new collective agreements have been made. The NLF asserts that, for all practical purposes, trade union activities have been banned and the collective bargaining process has been obstructed. Thirty-three trade union officers from eight steel unions who have been agitating for the restoration of union rights have been dismissed (a list of the dismissed officers was attached to the complaint).
3. 486. Additional information supplied by the complainant in a later communication indicates that, given the artificial promotions, the number of officers to workers within the company has reached 12,000 officers to 12,000 workers or a ratio of one to one.
   • Pakistan Railways
4. 487. As concerns the workers at Pakistan Railways, the complainant has supplied a copy of circular No. E-I/91-ACT/2 issued by the Ministry of Railways dated 18 October 1993 which makes use of section 1(3)(a) of the Industrial Relations Ordinance to exempt railway employees working on Ministry of Defence lines from the provisions of the Ordinance. The circular advises such employees not to take part in any trade union activities and warns them that participation in any such activities will make them liable to all legal and disciplinary actions provided under law and the statutory rules. According to the complainant, the circular covers almost 90 per cent of workers in open line establishments. The complainant further notes that these workers had always enjoyed trade union rights, even during the period of British rule.
   • Pakistan International Airlines
5. 488. Finally, the complainant indicates that an administrative order was issued on 6 April 1994 by the General Manager of PIA which restricts negotiations to matters pertaining to pay, allowances and perquisites, all other decisions regarding terms and conditions of service to be taken by the Board of Directors. While the complainant organization has indicated that the management has "retreated" on this point, it nevertheless has expressed its concern that further attempts may be made in this regard.

B. The Government's reply

1. 489. In its communication dated 24 July 1994, the Government recalls that Pakistan Steel is an industrial organization covered by the Industrial Relations Ordinance which sets forth the procedures for settling labour disputes. The Government asserts that the NLF is not a representative body with respect to Pakistan Steel and therefore has no locus standi. The Government further indicates that the NLF took the case to the Sindh High Court which dismissed the petition on the grounds that the NLF had no locus standi.
2. 490. As concerns the ban on trade union activities for Pakistan Railway employees, the Government points out that the union has filed a writ petition to the Lahore High Court and the matter is therefore sub judice.
3. 491. Finally, as concerns Pakistan International Airlines, the Government contends that the administrative order limiting the subject matter for collective bargaining purposes was only intended to ensure the implementation of uniform policy and was misinterpreted by the association and union representatives. The Government also recalls that the order was withdrawn before its implementation in order to remove this misunderstanding.

C. The Committee's conclusions

1. 492. The Committee observes that this complaint concerns allegations of measures taken at the enterprise level and at the national level to impede workers' rights with respect to freedom of association and collective bargaining in violation of freedom of association and collective bargaining principles.
2. 493. As concerns Pakistan Steel, the Committee notes that the allegations concern impediments placed in the way of the collective bargaining process which resulted, in 1992, in the annulment of the current agreements and which have effectively hindered the negotiation of any new agreement. Furthermore, the complainant has provided a list of 33 high-ranking union officers who have recently been dismissed, and also alleges that there have been an exorbitant number of false promotions.
3. 494. The Committee notes the Government's indication that the Industrial Relations Ordinance of 1969 sets forth the relevant procedures for settling disputes and hearing grievances and that the writ petition submitted by the NLF was rejected in the absence of the right of the NLF to go to court. The Committee recalls that Article 4 of Convention No. 98 provides that measures appropriate to national conditions shall be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and workers with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee considers that the unilateral annulment of freely concluded collective agreements is contrary to the basic principles of collective bargaining and is likely to have a detrimental effect on the harmonious nature of industrial relations. As the Government has not refuted the allegation that, for all practical purposes, the collective bargaining process has since been obstructed, the Committee would also recall the importance it attaches to the principle according to which "both employers and trade unions should bargain in good faith to come to an agreement and that genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties". (See, for example, 284th Report, Case No. 1619 (United Kingdom), para. 360.)
4. 495. The Committee notes the complainant's indication that a substantial number of trade union leaders have been dismissed. The Government, however, has not provided any information in this respect. The Committee would therefore recall the principles according to which all workers should be able to form and join organizations of their own choosing in full freedom and no person should be prejudiced in his or her employment by reason of his or her trade union membership or legitimate trade union activities. (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 222 and 538.) The Committee urges the Government to take measures to establish an impartial inquiry with a view to establishing the true reasons for these dismissals and, if it is proven that the individuals concerned were dismissed by reason of their trade union activities, to ensure that they are reinstated in their posts. It requests the Government to keep it informed of the findings of the inquiry.
5. 496. As concerns the mass promotions disqualifying workers from union membership, the Committee considered a similar question in an earlier case against Pakistan (Case No. 1534). The promotion policies in question in that case had been considered by the Committee to result in unusually high management/worker ratios and to be clearly designed to undermine the membership of workers' trade unions. The Committee concluded that such actions violated the principles of freedom of association. (See 278th Report, para. 470.) In its final conclusions, the Committee had recalled that it was the Government's responsibility to ensure in law and in practice the application of the principles of freedom of association and, in particular, of the Conventions which it has ratified. (See 281st Report, para. 171.) In this respect, both this Committee and the Committee of Experts in its supervision of the application of Convention No. 87 have urged the Government to take measures with a view to strengthening the application of the protective provisions in the Industrial Relations Ordinance (IRO), 1969, so as to prevent the undermining of workers' organizations through artificial promotions. (op. cit., para. 172.)
6. 497. The Committee further notes that a direct contacts mission to Pakistan was undertaken in January 1994. The mission noted that a task force on labour had been established, inter alia, to remove flaws, ambiguities and inadequacies in the labour law. In this regard, the mission pointed out that the present definition of "worker" in the IRO was inadequate as it was easily open to abuse, limiting those who could be members of a trade union. The direct contacts mission recommended that this definition be amended and urged that ILO principles be taken into account in the redrafting. Given the substantial number of promotions at Pakistan Steel noted in the complaint, the Committee once again urges the Government to make the necessary changes to ensure adequate protection of workers against the abusive use of promotions to undermine the trade union movement and requests the Government to keep it informed of the situation of the trade unions at Pakistan Steel. It draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
7. 498. The Committee notes from the Government's reply that the circular which excludes all railway employees working on the Ministry of Defence lines from the purview of the Industrial Relations Ordinance which guarantees the basic rights of freedom of association and collective bargaining is sub judice. It also notes the complainant's assertion that these lines covered over 90 per cent of workers in open line establishments and that these workers have always enjoyed trade union rights, even when under British rule.
8. 499. The Committee would first recall that Article 2 of Convention No. 87 provides that workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing. While Article 9 of the Convention does authorize exceptions to the scope of its provisions for police and armed forces, the Committee would recall that the members of the armed forces who can be excluded should be defined in a restrictive manner. (See 238th Report, Case No. 1279, para. 137.) Furthermore, the Committee of Experts on the Application of Conventions and Recommendations has observed that since this Article of the Convention provides only for exceptions to the general principle, workers should be considered as civilians in case of doubt. (See General Survey on Freedom of Association and Collective Bargaining, 1994, para. 55.) Given that the Government circular would appear to affect almost all railway employees in the country and that these employees have always enjoyed trade union rights in the past and therefore would not appear to be members of the armed forces for the purposes of the Convention, the Committee would draw the Government's attention to the need to ensure, in its legislation as well as in any relevant ministerial circulars, the right for all workers who are not members of the armed forces to organize and to carry out trade union activities. The Government is requested to keep the Committee informed of the Lahore High Court's judgement in this case.
9. 500. Finally, the Committee notes from both the complainant and the Government that the administrative order limiting the subject matter for collective bargaining purposes at Pakistan International Airlines has been revoked. The Committee therefore considers that this point calls for no further examination. As the complainant has, however, indicated its fear that similar attempts to encroach on trade union rights may be made, the Committee would recall that matters which are primarily or essentially questions relating to conditions of employment should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust.

The Committee's recommendations

1. 501. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling the principles according to which all workers should be able to form and join organizations of their own choosing in full freedom and no person should be prejudiced in his or her employment by reason of his or her trade union membership or legitimate trade union activities, the Committee urges the Government to take measures to establish an impartial inquiry with a view to establishing the true reasons for the dismissals of the trade union leaders at Pakistan Steel and, if it is proven that the individuals concerned were dismissed by reason of their trade union activities, to ensure that they are reinstated in their posts. It requests the Government to keep it informed of the findings of the inquiry.
   • (b) Recalling its previous recommendation to the Government to take measures with a view to strengthening the application of the protective provisions in the Industrial Relations Ordinance, 1969, so as to prevent the undermining of workers' organizations through artificial promotions and noting the recommendation of the direct contacts mission to amend the definition of "worker" in the IRO, the Committee once again urges the Government to take the necessary measures so as to ensure effectively the right to organize for all workers and to keep it informed of the situation of the trade unions at Pakistan Steel.
   • (c) Recalling that Article 9 of Convention No. 87 only permits exemptions from the application of its provisions for members of the armed forces and the police, the Committee draws the Government's attention to the need to ensure in its legislation and any relevant ministerial circulars the right for all workers and employers, without any distinction whatsoever, including railway employees, to establish and to join organizations of their own choosing. The Committee trusts that the judgement of the Lahore High Court will resolve the issue of railway employees and requests the Government to keep it informed in this regard.
   • (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case regarding Convention No. 87.