Observación (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the Government’s report. In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2229 (see 338th Report, November 2005). The Committee further notes the comments made by the All Pakistan Federation of Trade Unions (APFTU) and the International Confederation of Free Trade Unions (ICFTU) in communications dated 14 May and 31 August 2005, respectively, concerning the application of the Convention. The comments of both unions concern legislative issues raised in the previous observation of the Committee as well as the application of the Convention in practice. The Committee requests that the Government provide its observations thereon.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to amend its legislation or to adopt specific legislation so as to ensure that the following employees enjoyed the right to form and join organizations to defend their own social and occupational interests:

-  managerial and supervisory staff (sections 2(xxx) and 63(2) of the Industrial Relations Ordinance (IRO));

-  workers excluded by virtue of section 1(4) of the IRO, namely workers employed in the following establishments or industries: installations or services exclusively connected with the armed forces of Pakistan including the Ministry of Defence lines of the railways; Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint; administration of the State other than those employed as workmen by the railways, post, telegraph and telephone departments; establishments or institutions maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons excluding those run on a commercial basis; institution established for payment of employees’ old-age pensions or for workers’ welfare; and members of the watch and ward, security or fire service staff of an oil refinery or of an establishment engaged in the production, transmission or distribution of natural gas or liquefied petroleum products or of a seaport or an airport;

-  workers of charitable organizations (section 2(xvii) of the IRO, 2002);

-  workers at the Karachi Electric Supply Company (KESC);

-  workers in the Pakistan International Airlines (PIA) (Chief Executive’s Order No. 6);

-  agricultural workers; and

-  export processing zones workers.

The Committee notes the Government’s statement that the right of managerial staff to form associations to defend their interests is guaranteed by the Constitution. As concerns other exclusions provided for in the IRO of 2002, the Government indicates that it has sent the draft amendments of the IRO to the Prime Minister Secretariat for approval before their promulgation. With regard to the KESC, the Government indicates that the National Industrial Relations Commission (NIRC) issued an order to the effect that the IRO of 2002, was not applicable to the KESC. The Trade Union of the KESC has appealed to the Bench of the NIRC and the matter was still pending. The Committee notes, however, that in Case No. 2006, pending before the Committee on Freedom of Association, the Government invoked economic interests to explain suspension of trade union rights at the KESC. In respect to Chief Executive’s Order No. 6, which abolished trade union rights of the workers in the PIA, the Committee notes that the Government reiterates that the case of the trade unions affected by the Order is still pending before the Supreme Court of Pakistan. No information was provided by the Government on the progress made in developing legislation to ensure trade union rights of agricultural and EPZ workers.

In the light of the above, the Committee once again emphasizes that all workers, with only the possible exception of police and armed forces, should enjoy the right to establish and join trade unions. It requests that the Government indicate in its next report the progress made in amending the IRO of 2002, and to provide a copy of the draft amendment thereof so that it could examine their conformity with the Convention. It further asks the Government to take without delay the necessary measures to restore full trade union rights to the KESC and the PIA workers and to keep it informed in this respect. The Committee also requests that the Government indicate in its next report the progress made in framing labour legislation to ensure the rights under the Convention to workers in the agricultural sector and EPZs and to transmit a copy of any relevant draft texts or adopted legislation.

Article 3. (a) Right to elect representatives freely. In its previous comments, the Committee requested the Government to amend section 27-B of the Banking Companies Ordinance of 1962, which restricted the possibility of becoming an officer of a bank union only to employees of the bank in question, under penalty of up to three years’ imprisonment, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting, as candidates, persons who have been previously employed in the banking company. The Committee regrets that no measures were taken by the Government in this respect and urges it to amend the Banking Companies Ordinance of 1962, so as to bring it into full conformity with Convention No. 87. It requests that the Government keep it informed of the measures taken or envisaged in this respect.

(b) Right to strike. In its previous observation, the Committee had noted that the federal or provincial government could prohibit a strike related to an industrial dispute in respect of any public utility services, at any time before or after its commencement, and refer the dispute to a board of arbitrators for compulsory arbitration (section 32 of the IRO). A strike carried out in contravention of an order made under this section was deemed illegal by virtue of section 38(1)(c). The Committee noted that Schedule I setting out the list of public utility services included services which could not be considered essential in the strict sense of the term - oil production, postal services, railways, airways and ports. The schedule also mentioned watch and ward staff and security services maintained in any establishment. Furthermore, for a number of years, the Committee had been requesting the Government to amend the Essential Services Act, which included services beyond those which can be considered essential in the strict sense of the term.

The Committee notes the Government’s statement that the provisions of the Essential Services Act, 1952, are applied very restrictively keeping in view national interests and serious hardship to the community. The Government explains that Pakistan is on the front line of the war against terrorism and that, in retaliation, some unscrupulous elements try to disrupt the supply chain of oil and natural gas, to paralyse the whole economy of the country. In such situations, the Government has to take decisive action to prevent any interruptions, which would endanger the life, personal safety and health of the whole or a part of the population.

Considering that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, the Committee once again requests the Government to amend the legislation so as to ensure that workers employed in oil production, postal services, railways, airways and ports may have recourse to strike action and so that compulsory arbitration may only be applied in these cases at the request of both parties. The Committee recalls that rather than imposing a prohibition on strikes, in order to avoid damages which are irreversible or out of proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, the authorities could establish a system of negotiated minimum service of public utilities. Considering the heavy penal sanctions linked to violation of the Essential Services Act, the Committee further asks the Government to amend this Act so as to ensure that its scope is limited to essential services in the strict sense of the term. The Committee also requests that the Government specify the categories of workers employed in the "watch and ward staff and security services maintained in any establishment".

The Committee had noted that section 31(2) of the IRO authorized "the party raising a dispute", either before or after the commencement of a strike, to apply to the Labour Court for adjudication of the dispute. During this time, the Labour Court (or Appellate Court) could prohibit the continuation of the existing strike action (section 37(1)). The Committee once again recalls that a provision, which permits either party unilaterally to request the intervention of the public authorities for the settlement of a dispute through compulsory arbitration leading to a final award, effectively undermines the right to strike by making it possible to prohibit virtually all strikes or to end them quickly. Such system seriously limits the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and to formulate their programmes and is not compatible with Article 3 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 153). The Committee therefore requests that the Government indicate the measures taken to amend section 31(2) so as to bring it into conformity with the Convention.

The Committee had further noted that according to section 31(3) of the IRO, where a strike lasted for more than 15 days, the federal or provincial government could prohibit the strike at any time before the expiry of 30 days, "if it was satisfied that the continuance of such strike was causing serious hardship to the community or was prejudicial to the national interests" and should prohibit the strike if it considered that it "was detrimental to the interests of the community at large". The Committee had further noted that under section 31(4), following prohibition of the strike, the dispute was referred to the commission or to the labour court for compulsory arbitration. Recalling that prohibitions or restrictions of the right to strike should be limited to essential services in the strict sense of the term, or to situations of an acute national crisis, and considering that the wording in section 31 is too broad and vague to be limited to such cases, the Committee asks the Government to amend its legislation so as to bring it into conformity with the Convention. It requests that the Government keep it informed of measures taken or envisaged in this respect.

The Committee had also noted that section 39(7) provided for the following sanctions for contravening a labour court’s order to call off the strike: dismissal of the striking workers; cancellation of the registration of a trade union; debarring of trade union officers from holding office in that or any other trade union for the unexpired term of their offices and for the term immediately following. The Committee once again recalls in this respect that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, existence of heavy and disproportionate sanctions for strike action may create more problems than they resolve. Since the application of disproportionate sanctions does not favour the development of harmonious and stable industrial relations, the sanctions should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177 and 178). More specifically, the Committee considers that the cancellation of trade union registration, in view of the serious and far-reaching consequences which dissolution of a union involves for the representation of workers’ interests, would be disproportionate even if the prohibitions in question were in conformity with the principles of freedom of association. Consequently, the Committee urges the Government to amend section 39(7) of the IRO so as to ensure that sanctions for strike action may only be imposed where the prohibition of the strike is in conformity with the Convention and that, even in those cases, the sanctions imposed are not disproportionate to the seriousness of the violation.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee addresses a request on other points directly to the Government.