Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 378, Junio 2016

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

1. 72. The Committee last examined this case at its March 2011 meeting [see 359th Report, paras 117–121]. This longstanding case concerns restrictions to the trade union and collective bargaining rights of banking sector employees pursuant to the enactment of Section 27-B of the Banking Companies (Amendment) Act, 1997 (Act No. XIV of 1997). Section 27-B entitled “disruptive union activities” prohibits in its first subsection acts including being an officer or member of a trade union in a banking company without being an employee thereof; it further provides in its second subsection that any person violating any of the provisions of subsection (1) shall be guilty of an offence punishable with imprisonment that may extend to three years or with fine or with both. Since its first examination of the case in November 2001 [see 326th Report, paras 419–431], the Committee has repeatedly urged the Government to amend Section 27-B so as to ensure 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. With regard to the alleged anti-union dismissals in 1999 of over 500 trade union leaders and members in the banking sector, the Committee requested the Government on several occasions to transmit a copy of the report of the inquiry which had found that they were not dismissed for anti-union motives [see 359th Report, para. 121; 357th Report, para. 53; 355th Report, para. 105 and 353rd Report, para. 169].
2. 73. The Government provided follow-up information in communications dated 7 June 2011 and 31 March and 20 August 2015. In its 2011 communication, the Government indicated that petitions regarding the case are pending in the courts of law of Pakistan and the latest position in this regard would be provided as soon as the decision is handed down. In its 2015 communications the Government stated that Section 27-B of the Banking Companies Ordinance is not in contravention of the provisions of Conventions Nos 87 and 98. In particular, the Government reiterates its initial view in the examination of this case that the prohibition on carrying on trade union activities during office hours and the barring of persons who are not employees of the Banking Company from being members of the trade union does not contravene the provisions of the Conventions. According to the Government, this occupational requirement just restrains entry of irrelevant workers as office-bearers of the trade union operative in a banking company.
3. 74. The complainant, United Bank Limited (UBL) Employees Union transmitted numerous communications since the last examination of the case. In its communication dated 30 May 2011, the complainant alleges that on 6 October 2010, Mr Nasir Qayyum, a junior bank officer in Faisalabad was dismissed without any notice due to trade union activities in the UBL. The complainant further indicates that no trade union leaders have yet been reinstated due to the length of the judicial process in Pakistan. With regard to the case of dismissal of the former president of the union, Mr Maqsood Ahmad Farooqui, who died on 7 December 2009 while his case was pending before the Labour Court, Multan, the complainant indicates that on 26 January 2011, the Punjab Labour Appellate Tribunal in Lahore decided in his favour, however, the UBL Head Office Karachi had not implemented the judgment till date. In a communication dated 24 August 2012, the complainant alleges that Mr Abdulwahab Bloch of UBL Bomby Bazar, Karachi, has been dismissed due to trade union activities. Attached to its 20 January 2014 communication, the complainant transmits a copy of a document with the letterheads of the State Bank of Pakistan, Banking Policy and Regulations Department. This document, dated 20 September 2011 and entitled “Case No. 2096 pending before the Committee of Freedom of Association”, is addressed to the Ministry of Finance. It is indicated therein that the demand of deletion of Section 27-B is to seek permission to carry weapons in banks, misuse bank’s resources, abuse bank officials and appoint outsiders in trade unions of the banks. The document states that Section 27-B is not inconsistent with the labour/trade union laws of the country and further indicates that the State Bank of Pakistan has been receiving frequent requests for repeal/amendment of Section 27-B from different trade unions of the banking industry in the past. The document emphasizes the continuing stance of the State Bank which had been conveyed to the Government on many occasions to the effect that it is necessary to retain the said Section in its present form. The complainant emphasizes a general lack of progress in the implementation of the previous recommendation of the Committee with regard to the repealing of Section 27-B and judicial examination of the dismissal cases of trade unionists in the banking sector since its adoption.
4. 75. The Committee notes the information provided by the Government with great concern, as 16 years after the opening of this case, and after having affirmed on several occasions that a legislative process that aimed at the repealing of Section 27-B was engaged and would soon reach conclusion, including a bill for its repeal being submitted to the Senate in 2009, [see 355th Report, para. 104; 357th Report, para. 52 and 359th Report, para. 119], the Government now denies that any legislative issues exist. While the Committee observes that Section 27-B addresses certain legitimate concerns by prohibiting acts such as carrying weapons into work premises without authorization and subjecting bank officials to physical harassment or abuse, it has to once again draw the attention of the Government to the imposition of an occupational requirement on all trade union members and officers is incompatible with the principles of freedom of association. In particular, the Committee is bound to recall once again that the requirement of membership of an occupation or establishment as a condition of eligibility for union office is not consistent with the right of workers to elect their representatives in full freedom. Such a requirement is also in contradiction with the workers’ organizations freedom of action, and even encourages acts of interference by employers, as in such cases, the laying off of a worker who is a trade union official can as well make her/him forfeit her/his position as a trade union official [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 407 and 408]. The allegedly anti-union dismissal of more than 500 banking sector trade union members and leaders after the adoption of Section 27-B, the judicial fate of whose complaints remains inconclusive to date, and the fact that the Government has still not provided the reports from the inquiries carried out in this regard are cause for deep concern. In view of the foregoing, the Committee firmly expects the Government to promptly take all the necessary measures to ensure that this legislation is brought into conformity with the principles of freedom of association, by at least making it more flexible through admitting, as candidates, persons who have previously been employed in the banking company concerned and by exempting, from the occupational requirement, a reasonable proportion of the officers of an organization [see Digest, op. cit., para. 409]. In this regard, the Committee notes that the 2012 Industrial Relations Act (Act No. X of 2012), which is applicable to all persons employed in any establishment or industry in the Islamabad Capital Territory or carrying on business in more than one province provides in its Article 8(d) that 25 per cent of trade union officers are exempted from the occupational requirement. The Committee encourages the Government to bring Section 27-B of the Banking Companies (Amendment) Act, 1997 in line with this legislation, so that banking sector workers employed by companies operating within a single province can benefit from an equal right to freely elect their representatives.
5. 76. The Committee further regrets that the Government has not provided any response to the indications of the complainant on the total absence of progress in the resolution of the issues raised in this case. In particular, the Committee notes with great concern that the banking sector workers dismissed allegedly on anti-union grounds following the enactment of Section 27-B are now aging and ailing and have yet to have a final judgment on the execution of previous orders. The Committee is bound to note that the cases of these dismissed workers is a striking example of the principle “justice delayed is justice denied” given that many of them have been pending for over 15 years. It firmly urges the Government to take all the necessary measures to ensure that all pending cases are resolved without delay and to provide full information on the judgments rendered. The Committee further regrets that the Government has not provided any reply to the allegations of anti-union dismissals of Mr Assad Shahbaz Bhatti, Mr Arshad Mehmood, Mr Zulfiqar Awan and Mr Mazhar Iqbal Sial submitted by the complainant in 2010 and once again urges the Government to provide its observations in this regard.
6. 77. With regard to the case of the deceased former president of the union, Mr Maqsood Ahmad Farooqui, in view of the information provided by the complainant that on 26 January 2011 the Punjab Labour Appellate Tribunal in Lahore decided in his favour, the Committee urges the Government, in line with its previous recommendation [see 359th Report, para. 121], to ensure that his heirs receive the relevant compensation and to keep it informed of the measures taken.
7. 78. With regard to the communication shared by the complainant – letter of the State Bank of Pakistan, Banking Policy and Regulations Department to the Ministry of Finance – the Committee expresses its concern at the discriminatory nature of that communication and invites the Government to bring the Bank and the complainant union together with a view to creating a more harmonious labour relations climate and ensure respect for freedom of association in the banking sector.