Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 338, Noviembre 2005

Effect given to the recommendations of the Committee and the Governing Body

1. 267. The Committee examined this case at its March 2004 meeting [see 333rd Report, paras. 833-848] and on that occasion it formulated the following recommendations:
   • (a) The Committee deplores that, despite the time that has elapsed since this case was first examined, the Government has not replied to all of the Committee’s recommendations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urgently requests the Government to be more cooperative in the future.
   • (b) The Committee urges the Government to amend section 27-B of the Banking Companies (Amendment) Act, 1997, without delay and requests it to provide information on any progress made in this regard.
   • (c) The Committee once again strongly urges the Government to provide information without delay on 500 trade union leaders in the banking sector, including Mr. Maqsood Ahmed Farooqui, President of the UBL Employees’ Federation of Pakistan, and Mr. Rahmat Ullah Kazmi, General Secretary, UBL Labour Union Karachi, who were dismissed or terminated from employment pursuant to the enactment of section 27-B of the Banking Companies Act.
   • (d) The Committee refers to its recommendations in Case No. 2229 concerning Pakistan approved by the Governing Body at its March 2003 meeting where it requested the Government to amend the Industrial Relations Ordinance of Pakistan (IRO) of 2002, as well as to the observations of the Committee of Experts. The Committee regrets that so far the Government has not been able to amend the IRO so as to bring it into conformity with Conventions Nos. 87 and 98.
2. 268. In communications of 1 and 26 June 2004, the United Bank Limited Employees’ Union (UBL employees’ union), affiliated to the complainant organization, stated that no progress was made in respect of implementation of the Committee’s recommendations in this case. It furthermore submitted several letters (notices) sent by the management of the UBL in reply to the request of the UBL employees’ unions in Sialkot (Gujranwala) and in Lohore Region to start collective bargaining in which the UBL indicated that the unions active at the UBL were illegal bodies and that therefore the bank could not enter into any bilateral negotiation with them. The following reasons were invoked by the bank:
   • (i) The notice inviting the UBL management to start bilateral negotiation was signed by Mr. Raja Mohammed Sarfaraz, who was not a bank employee and therefore could not be a UBL trade union office bearer.
   • (ii) Under the IRO 2002, the UBL constitutes one establishment. The law did not permit the establishment of unions in subdivisions of an establishment. Therefore, the union, its statutes and its collective bargaining agent (CBA) certification were without any legal effect. Moreover, the Registrar should cancel registration of unions registered under the IRO 1969, as their registration violated the IRO 2002.
   • (iii) The rights conferred under the IRO 2002 were subject to the Constitution of Pakistan, as well as “any other law” (section 3), i.e. section 27-B of the Banking Companies Ordinance, 1962.
   • (iv) The UBL employees’ union, violated section 3(1)(d) of the IRO 2002 which provided for a compulsory affiliation of every CBA with a federation at national level within two months of determination of the CBA or promulgation of the IRO 2002 whichever is earlier.
   • (v) The union used the address of the branch office of the bank. In other words, the union was carrying out its activities at the bank premises, which violated section 27-B of the Banking Companies Ordinance, 1962.
3. 269. The complainant also submitted a letter from the Office of the Registrar of Trade Unions in Sargodha, addressed to the Senior Vice-President of the ULB in Karachi, answering the abovementioned objections raised by the UBL management in the following way:
   • (i) Although Mr. Raja Mohammed Sarfaraz was not an employee of the UBL, he was retired from service. By virtue of section 6(1)(d) of the IRO 2002, he had the right to hold trade union office.
   • (ii) The objection that the UBL constituted one establishment was legally incorrect. Moreover, the existing status of the union as a CBA was in conformity with section 80 of the IRO 2002.
   • (iii) The statutes of the union were not inconsistent with the IRO 2002; therefore, the registration of the union could not be cancelled.
   • (iv) The federal Government had not exempted banks from the scope of the IRO 2002.
   • (v) The status of the union as CBA within the meaning of section 20(1) of the IRO 2002, was lawful and beyond any doubt, the UBL management was legally bound to negotiate with the union.
4. 270. In its communication of 24 June 2005, the Government provided a detailed reply to the Committee’s recommendations. With regard to the previous request to amend section 27-B of the Banking Companies (Amendment) Act, 1997, so as to admit as candidates for union office persons who have previously been employed in the occupation concerned and, by exempting from the occupational requirement a reasonable proportion of the officers of an organization, the Government indicated that the procedure of establishment and registration of trade unions, as well as other matters related to industrial relations, were regulated by the IRO 2002. By virtue of section 6(1)(d), 25 per cent of the trade union officers could be elected from among the persons who were not employees of the banking company in question. The provisions of the IRO took precedence over the provisions of the Banking Companies Ordinance. The Government further indicated that a case on this issue was pending before the high court (Petition C.P. No. 331/2003).
5. 271. The Government contested the allegation of mass dismissals in the banking sector. It stated that, according to the ULB, none of the ex-employees have been dismissed on the grounds of their trade union activities. Mr. Maqsood Ahmed Farooqi, the President of the UBL Employees’ Federation of Pakistan, was dismissed on the basis of a proven act of misconduct on 28 July 1999 and not pursuant to section 27-B of the Ordinance. His appeal to the Federal Services Tribunal was dismissed. His appeal before the Supreme Court was still pending. As concerns the case of Mr. Rahmat Ullah Kazmi, General Secretary, UBL Labour Union Karachi, the Government also contested the allegation that he was dismissed pursuant to section 27-B, as amended in 1997. According to the Government, he was dismissed on 5 September 1996 and therefore could not be dismissed pursuant to section 27-B. Following a rejection of his appeal by the Federal Services Tribunal, Mr. Rahmat Ullah Kazmi filed a second appeal before the same tribunal. The bank, being aggrieved by the second appeal, filled an appeal before the Supreme Court of Pakistan, which was still pending.
6. 272. With regard to the amendment of the IRO 2002, the Government stated that it had held full and frank consultations with the stakeholders. The amending law would soon be placed before Parliament for approval.
7. 273. The Committee notes with interest the detailed reply provided by the Government. While noting the Government’s statement that the IRO 2002 takes precedence over the Banking Companies (Amendment) Act, 1997, and that, therefore, 25 per cent of the trade union office bearers could be elected among persons who were not employees of the banking company in question, the Committee also notes that, on the one hand, this assertion is presently contested before the high court and, on the other hand, the management of the UBL in Sargodha refused to negotiate with the union and one of the reasons it had invoked was that the President of the union was not an employee of the bank. The Committee considers that where difficulties with regard to the interpretation of rules concerning the election of trade union officers create situations where the employers refuse to negotiate with the union concerned and, more in general, to recognize such a union, problems of compatibility with Convention No. 87 arise. The Committee therefore requests the Government to take all necessary measures so as to ensure, in practice, that trade unions can carry out their activities in the banking sector, including the right to elect their representatives in full freedom and the right to collective bargaining. More specifically, it requests the Government to take all necessary measures so as to ensure that the UBL employees’ unions can negotiate the terms and conditions of employment of its members with the managers of the UBL branches concerned and keep it informed in this respect.
8. 274. As concerns the alleged cases of dismissal, the Committee notes that the Government submitted that Mr. Maqsood Ahmed Farooqi, the President of the UBL Employees’ Federation of Pakistan, was dismissed on the basis of a proven act of misconduct on 28 July 1999 and not pursuant to section 27-B of the Ordinance. The same is submitted in respect of the dismissal in 1996 of Mr. Rahmat Ullah Kazmi. The Committee notes that the dismissal of Mr. Maqsood Ahmed Farooqi as well as of some other trade union members took place in the context of a strike in March 1998 where the strikers demanded, inter alia, an end of a ban on the UBL trade unions. The Committee further notes that, although the Government indicated that Mr. Rahmat Ullah Kazmi was not dismissed pursuant to section 27-B, it did not provide for any further information on the circumstances of his dismissal, nor on the numerous other alleged anti-union dismissals. The Committee therefore requests the Government to conduct an independent inquiry to thoroughly and promptly consider the allegations of anti-union dismissals at the UBL and to ensure that appropriate measures are taken in response to any conclusions reached in relation to these allegations of anti-union discrimination. The Committee requests the Government to ensure that, if it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, those workers are reinstated in their jobs without loss of pay. If the independent inquiry finds that reinstatement is not possible, the Committee requests the Government to ensure that adequate compensation, so as to constitute sufficiently dissuasive sanctions, is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard.