Informe provisional - Informe núm. 381, Marzo 2017

1. 505. The Committee last examined this case at its March 2015 meeting, when it presented an interim report to the Governing Body [see 374th Report, paras 587–598, approved by the Governing Body at its 323rd Session].
2. 506. The Government sent its partial observations in communications dated 28 May and 21 August 2015.
3. 507. 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. Previous examination of the case

1. 508. At its March 2015 meeting, the Committee made the following recommendations [see 374th Report, para. 598]:
   • (a) The Committee regrets that, despite the time that has elapsed since the complaint was last examined, the Government has not replied to any of the Committee’s outstanding recommendations. The Committee urges the Government to be more cooperative in the future.
   • (b) The Committee requests the Government to clarify to which agreement it referred in its previous reply and, should there be a more recent agreement, to transmit a copy thereof to the Committee. The Committee also once again requests the Government and the complainant to indicate whether the July 2011 agreement has now been implemented.
   • (c) In view of the gravity of the matters raised in this case, the Committee once again requests the Government to provide information on the investigation into the allegations that: (i) violence was used against trade union members during a demonstration against the refusal of the enterprise to implement the tripartite agreement, injuring nine; and (ii) 30 trade union officers were dismissed following this demonstration and/or criminal charges were brought against them, with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It expects that, should it be found that these unionists were dismissed or charged for the exercise of legitimate trade union activities, the Government will take all necessary steps to ensure their reinstatement and the dropping of all pending charges. If reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the union members concerned are paid adequate compensation so as to constitute a sufficiently dissuasive sanction for anti-union discrimination.
   • (d) Recalling that Presidential Ordinance No. IV of 1999, which amended the Anti Terrorism Act by penalizing with imprisonment the creation of civil commotion, including illegal strikes or slowdowns, had been repealed and is no longer in force, and noting from the complainant’s allegations that charges were brought against trade union officers under the Anti-Terrorism Act, the Committee once again requests the Government to indicate under which provisions of the Anti-Terrorism Act the trade union officers were charged and invites it to ensure that any pending charges are dropped should they relate to the exercise of legitimate strike action.

B. The Government’s reply

1. 509. In its communications dated 28 May and 21 August 2015, the Government indicates that: (i) the High Court of Sindh, on a writ petition from the Karachi Electric Supply Enterprise (hereinafter, the electricity enterprise) management, had restrained members of the Karachi Bench of the National Industrial Relations Commission (NIRC) from hearing petitions filed by members of the Karachi Electric Supply Corporation Labour Union (KESC); (ii) following the March 2015 meeting between the Federal Secretary of the Ministry of Overseas Pakistani Human Resource Development (OPHRD) and the Chairman of the Committee, the Ministry of Law, Justice and Human Rights was requested to depute a counsel to ensure that the stay granted by the High Court of Sindh could be vacated, thus enabling the NIRC to hear and conclude the pending cases of the KESC workers; (iii) the Ministry of Law, Justice and Human Rights nominated the Deputy Attorney General, High Court of Sindh, to represent the Government before the High Court of Sindh with a view to vacating the stay; (iv) the Ministry of OPHRD held a meeting between the company management and the complainant to facilitate resolution of the issues but the management did not attend the meeting, claiming that the matter was sub judice and that a number of cases against the complainant were pending before the High Court of Sindh; (v) according to the company, reinstatement cases of workers were still pending before the Karachi Bench of the NIRC due to the stay granted by the High Court of Sindh and the company could not provide further comments due to the sub judice nature of the matter; and (vi) the Ministry of OPHRD is actively engaged with the Labour Department of the Sindh Province with a view to resolving the issue and any new developments will be communicated to the Committee. The Government adds that the Employers’ Federation of Pakistan (EFP) indicated that most of the 4,500 staff retrenched in 2011 have availed themselves of the voluntary separation scheme offered by the company.

C. The Committee’s conclusions

1. 510. The Committee recalls that the complaint in this case was lodged in 2011 and concerned allegations that the management of the electricity enterprise refused to implement a tripartite agreement to which it was a party, as well as allegations of violence against protesting workers, dismissals and the filing of criminal charges against trade union office bearers.
2. 511. With regard to the alleged refusal by the management to implement a tripartite agreement to which it was a party, the Committee recalls that the agreement in question was signed in July 2011 and provided for the reassignment of the 4,500 company workers declared redundant, as well as the recovery of unpaid wages. The Committee also recalls that the Government previously made reference to an agreement reached between the company management and the complainant as a result of an effective intervention of the governor of Sindh but failed to specify whether it was referring to the July 2011 tripartite agreement or a more recent agreement addressing the subsequent allegations of violence and dismissals. Noting the Government’s indication that, according to the Employers’ Federation of Pakistan (EFP), the majority of the 4,500 retrenched staff accepted a voluntary separation scheme offered by the company, the Committee observes that the July 2011 agreement providing for reassignment of the retrenched workers does thus not appear to have been implemented. The Committee, therefore, requests the Government to indicate whether a subsequent agreement replaced the July 2011 agreement, and if so, to provide further information on it, including the issues covered, and to specify the labour situation of those retrenched workers who did not accept the voluntary separation scheme offered by the company.
3. 512. The Committee further notes the Government’s indication that, based on a writ petition from the company, the High Court of Sindh restrained the Karachi Bench of the National Industrial Relations Commission (NIRC) from hearing petitions filed by members of the KESC but that several measures were taken or envisaged to address this matter, including: the appointment of a counsel to ensure that the stay would be lifted; the appointment of the Deputy Attorney General, High Court of Sindh, to represent the Government before the High Court of Sindh; and the Government’s engagement with the Labour Department of the Sindh Province, as well as its efforts, albeit unsuccessful, to hold a meeting between the company management and the complainant to facilitate resolution of the issues. The Committee takes due note of these measures but observes that, according to the information provided, the stay ordered by the High Court of Sindh has not yet been lifted and the NIRC continues to be restrained from hearing the KESC workers’ petitions. While further noting that the exact substance of the workers’ petitions is unclear from the information provided – these could relate to any of the complainant’s allegations: implementation of the July 2011 agreement, violence during a public demonstration in August 2011, subsequent dismissals and criminal charges against 30 trade union office bearers – the Committee recalls that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial. Justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 820 and 105]. The Committee expects that the High Court of Sindh will finally conclude on this matter without delay so that the claims of anti-union discrimination can be effectively examined either by the NIRC or the appropriate judicial body. The Committee also requests the Government to take all necessary measures to enable the concerned workers to have effective access to such means of redress for any alleged prejudice based on trade union membership or activities and further urges it to promote negotiation between the complainant and the company with a view to solving any pending issues. The Committee requests the Government to inform it of any developments in this regard.
4. 513. In relation to the allegations that violence was used against trade union members during the August 2011 demonstration against the refusal of the company to implement the July 2011 tripartite agreement, injuring nine, and that 30 trade union office bearers were dismissed following this demonstration and/or criminal charges were brought against them, the Committee regrets the Government once again fails to provide any information on the measures taken to institute independent investigations in this regard. The Committee, therefore, urges the Government to provide information on the investigations instituted into these allegations with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It expects that, should it be found that these unionists were dismissed or charged for the exercise of legitimate trade union activities, the Government will take all necessary steps to ensure their reinstatement and the dropping of all pending charges. If reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the union members concerned are paid adequate compensation so as to constitute a sufficiently dissuasive sanction for anti-union discrimination.
5. 514. Recalling that Presidential Ordinance No. IV of 1999, which amended the Anti-Terrorism Act by penalizing with imprisonment the creation of civil commotion, including illegal strikes or slowdowns, had been repealed and is no longer in force, and noting from the complainant’s allegations that charges were brought against trade union officers under the Anti-Terrorism Act, the Committee once again requests the Government to indicate under which provisions of the Anti-Terrorism Act the trade union officers were charged and invites it to ensure that any pending charges are dropped should they relate to the exercise of legitimate strike action.