Informe provisional - Informe núm. 151, Noviembre 1975

1. 159. The complaint from the International Transport Workers' Federation (FIOT) was submitted by a letter of 21 October 1974. This complaint was transmitted to the Government which sent its observations in a communication of 24 January 1975.
2. 160. 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. A. The complainants' allegations

1. 161. The complaint from FIOT is based mainly on information communicated to it by the Pakistan National Federation of Trade Unions (PNFTU). According to the latter, the Organisation of Karachi Port Trust Workers had started negotiations with the employer in July 1974 and shortly afterwards served strike notice in accordance with the provisions of the Ordinance of 1969 on industrial relations; the 14 days' strike notice was extended several times. On 28 August 1974, the PNFTU continues, the conciliator stated that attempts to conciliate had failed and three days later the Government notified prohibition of the strike and referred the dispute to the National Industrial Relations Commission (NIRC) although the union concerned had informed the employer and the authorities that it had no confidence in the NIRC, would not submit to its jurisdiction and preferred mutual negotiations.
2. 162. The union did not attend the meetings of the Commission. The Secretary of Labour then endeavoured to obtain a settlement of the dispute and succeeded on the only question still pending: the percentage increase in wages. However, during the drafting of the agreement, the management proposed a lower housing allowance than had been agreed upon and refused to give way. After waiting in vain for a conciliatory gesture, continued the PNFTU, the union decided to declare a strike.
3. 163. The PNFTU, to which the union in question is affiliated, states that police then entered its own premises and arrested the persons present, whether they were members of the union concerned or not. The police also occupied the port area. The strike started and it is claimed that the police arrested many union members, even in their homes. It is reported, continues the PNFTU, that over 1,500 workers were arrested, people harassed and women tortured. The water supply was reported to have been cut off and launches carrying essential supplies and transporting people stopped. The Government is said to have claimed that the strike was instigated by the National Awami Party and Afghanistan. The PNFTU claims that this was merely a pretext to cancel the registration of the union in question.
4. 164. The FIOT protests against the detention of trade union leaders without a hearing. It states that the union concerned has been officially recognised as a bargaining agent for a long time. It also states that the PNFTU has sought an order from the High Court declaring that the strike was not illegal, that there were no grounds for cancelling the unions registration and that the arrests of the trade union leaders and strikers were wrongful. On 16 October, the High Court had ordered the release of those arrested but when seven were freed, they had immediately been re-arrested. The FIOT understands that some 25 trade union leaders and 300 strikers are still imprisoned but that some 500 workers are still on strike. The great majority of the workers had been coerced into going back to work.
5. 165. In its reply, the Government states that the procedure to be followed in the event of a labour conflict is laid down in sections 26 to 33 of the Industrial Relations Ordinance, 1969. If a trade union considers that an industrial dispute has arisen or is likely to arise, it may communicate its views in writing to the employer, who is then obliged to try to settle the dispute within ten days through bilateral negotiations. If no settlement is reached in that period, the trade union can, within the next seven days, serve on the employer a 14 days' notice of strike and forward a copy to the conciliator for conciliation proceedings. If these proceedings do not succeed within the period of the notice of strike, they cannot be continued for any further period without the consent of the parties. The Government has no power to extend or curtail the conciliation proceedings. If the conciliation fails and the parties do not agree to refer the dispute to a private arbitrator acceptable to both of them, the workers may go on strike on the expiry of the 14-dap period of the notice of strike or upon the conciliators declaring the conciliation proceedings a failure, whichever is the latter. If the strike lasts for more than 30 days, the Government can prohibit the strike and refer the dispute to the Labour Court or the National Industrial Relations Commission, as the case may be, for determination within 30 days. It the case of public services, such as the case of the single port of Pakistan, the Government continues, it can prohibit a strike at any time before or after its commencement, and refer the dispute in the aforesaid manner for adjudication within 30 days. If in the opinion of the Federal Government, a dispute is of national importance, it can be referred only to the National Industrial Relations Commission.
6. 166. The bilateral negotiations and conciliation proceedings had lasted about two months and had resulted in resolution of all the demands except that relating to wages. After their failure, the Government had had no option but to prohibit the strike in this nerve centre of the country's economy and to refer the dispute to the National Industrial Relations Commission for determination and adjudication. Any further delay on its part would have crippled the economy of the country.
7. 167. The Government recalls that the union in question refused to submit to the jurisdiction of the Commission and did not appear at its two meetings. Although the latter could have proceeded ex parte against the union, the Provincial Labour Secretary had tried to bring about a settlement between the parties and had succeeded in doing so. However, the settlement failed during the drafting of the document, when a difference arose in respect of the housing allowance which, according to the complaint, had been reduced to a rate lower than that previously agreed upon.
8. 168. The Government added that the National Industrial Relations Commission is headed by a chairman who is a retired judge of a High Court and that its part-time members include the labour secretaries from all the provinces, one joint secretary of the Federal Labour and Local Bodies Division and Industries Division, one representative of workers and one representative of employers. The Commission also includes two full-time members who are qualified to be appointed High Court judge. Appeals against the decisions of a Bench comprising one or two members of the Commission are submitted to a full Bench comprising three or more members; the final decision is challengeable before the High Court and Supreme Court in writ jurisdiction. No material had been supplied by the complainants in support of the assertion that the Commission was anti-worker. The best policy for the union would have been to avail itself of its legal remedies instead of resorting to illegal methods.
9. 169. According to the Government, the measures adopted by the local authorities responsible for maintaining law and order were misinterpreted as repressive actions forcing workers to abandon the strike. In fact, the measures had been taken as a precaution against sabotage. The arrested persons were dealt with according to due process of law and all of them were released. Under the Constitution and law of Pakistan, continues the Government, nobody can be detained for more than 24 hours without being brought before a magistrate, whose orders, based on the records, have to determine his further detention pending trial. The registration of the union was cancelled by the registrar of trade unions, with prior approval of the competent Labour Court, because the union had contravened the law. The union has challenged the validity of the cancellation as well as that of the reference of the dispute to the Commission, before the High Court.
10. 170. It appears from the information available that after the failure of the negotiations and attempts to achieve a conciliation, the union in question refused to submit to the jurisdiction of the National Industrial Relations commission and, despite the prohibition by the authorities, started a strike in the port of Karachi. The forces of order took action, arresting in particular various trade union leaders and strikers, and the registration of the union was cancelled.

B. B. The Committee's conclusions

1. 171. The Committee has always pointed out that action by the forces of order which, in this case, according to the complainant, were guilty of certain excesses, should be restricted to maintaining public order. It also considers that the arrest of such a large number of strikers and trade union leaders involves serious risks of abuse and serious threats to freedom of association and that the competent authorities should be given suitable instructions to prevent such risks and threats. The Committee nevertheless notes that Pakistan law prohibits the detention of a person for more than 24 hours without appearance before a magistrate and that all the persons arrested were released.
2. 172. Moreover, sections 10 and 11 of the Industrial Relations Ordinance, 1969 (as amended up to 1974) established the procedure to be followed for the cancellation of a union's registration: registration may be cancelled if the court so decides on a written complaint from the registrar when the union violates any provision of the Ordinance or its rules of application. According to the information from the Government, this procedure was applied in the case under discussion. However, the validity of the cancellation has been challenged before the High Court. Under these conditions and in view of the fact that, according to the complainant, the union in question had been recognised for a long time as the bargaining agent for employees of the Karachi Port Trust, the Committee considers it necessary to obtain information on the results of the appeal action.
3. 173. Regarding the prohibition of the strike, the Government states that Karachi is the only port in the country and a nerve centre of the country's economy, which would have been crippled by the strike. Moreover, the parties to the conflict came to agreement on all points except one, that of a house rent, and it was on account of the latter point of disagreement that the union in question started an unlimited strike.
4. 174. The Committee has frequently pointed out that the right of workers and their organisations to strike is generally recognised as a legitimate means of defending their occupational interests, but has agreed that this right could be restricted or even prohibited in the civil service or in essential services because a strike there could cause serious hardship to the national community. It has also considered that it appears impossible for large strikes to take place in undertakings constituting key sectors in the life of a country without such hardship arising.
5. 175. Under the law of Pakistan, if a dispute is of national importance, the strike may be prohibited and the dispute referred to the National Industrial Relations Commission for decision (articles 22A and 33 of the aforementioned Ordinance). This is composed of a full Bench comprising three or more members and other Benches comprising one or two members (article 22B(2)). In view of the fact that, as stated by the Government, the Commission includes in particular the provincial labour secretaries and two joint secretaries, although the Commission comprises other members including a representative of the workers, the members of the executive authority might be called upon to settle the dispute alone. In addition, the union concerned has expressly stated its lack of confidence in the Commission.
6. 176. The Committee has repeatedly stated that restrictions or prohibitions on the right to strike should be accompanied by adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. It has specifically referred, amongst these safeguards, to conciliation and arbitration procedures in which the parties can take part at every stage. It has also considered it essential that all members of bodies exercising these functions shall not only be impartial but shall also be considered as such by the parties concerned if they are to secure and maintain their confidence, on which the success of these procedures really depends.
7. 177. In the case under discussion, the union concerned did not consider the safeguards designed to compensate for the loss of the right to strike to be inadequate. The Committee considers that this situation can result in a strained atmosphere and is in any case not propitious for the peaceful settlement of labour conflicts.