Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes that the Government’s report has not been received.

The Committee notes the comments made by the International Trade Union Confederation (ITUC) and the Pakistan Workers’ Federation (PWF) in communications dated 29 August and 21 September 2008, respectively. The comments of both unions concern legislative issues as well as the application of the Convention in practice raised in the previous observation of the Committee. The ITUC further alleges arrest of a number of trade union leaders. The Committee recalls that the right of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of these organizations and it is for the governments to ensure that this principle is respected. The Committee requests that the Government provide its observations thereon, as well as on the 2005 and 2006 comments of the International Confederation of Free Trade Unions (ICFTU), alleging massive arrests and measures of retaliation against strikers, denial of registration of a union, limitation to the right of demonstration, harassment of women trade union leaders, suspension of a trade union and the possible use of section 144 of the Code of Criminal Proceedings against a trade union gathering and the 2005 comments of the All Pakistan Federation of Trade Unions (APFTU). The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2229 (see 349th Report) and 2399 (see 344th and 350th Reports), dealing with the same issues.

The Committee recalls that its previous observations concerned the need to amend the Industrial Relations Ordinance (IRO) 2002. The Committee notes that the Industrial Relations Act, amending the IRO 2002, was adopted in November 2008 and that it will be an interim law, which will lapse on 30 April 2010. During this period, a tripartite conference will be held to draft a new legislation in consultation with all stakeholders. The Committee expresses the hope that the new legislation will take into account its previous comments with regard to the IRO 2002.

In particular, the Committee trusts that the new legislation will guarantee the right to form and join organizations to defend their own social and occupational interests to the following categories of workers:

–      managerial and supervisory staff;

–      workers who were excluded by virtue of section 1(4) of the IRO 2002, 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; institutions 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;

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

–      workers at Pakistan International Airlines (PIA) (Chief Executive’s Order No. 6);

–      agricultural workers; and

–      export processing zone (EPZ) workers.

The Committee further trusts that, under the new legislation, the following restrictions on the right to strike will be lifted:

–      the possibility to impose compulsory arbitration at the request of one party to end a strike action (reference is made to sections 31(2) and 37(1) of the IRO 2002). In this respect, the Committee 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 a 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 of 1994 on freedom of association and collective bargaining, paragraph 153);

–      the right of the federal or provincial Government to prohibit a strike which had lasted for more than 15 days 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 to prohibit the strike if it considered that it “was detrimental to the interests of the community at large”. In this respect, the Committee recalls 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. The Committee had previously considered that the wording above, as previously provided for in section 31 of the IRO 2002, was too broad and vague to be limited to such cases;

–      sanctions previously imposed by section 39(7) for contravening a labour court’s order to call off a 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). In this respect, the Committee recalls 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.

The Committee requests the Government to provide a copy of the new legislation once it is adopted.

The Committee recalls that, in its previous observation, it had noted that under section 32 of the IRO 2002, 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 and that a strike carried out in contravention of an order made under this section was deemed illegal. The Committee had also 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. 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 Essential Services Act 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”.

In its previous comments, the Committee had noted the Government’s indication that measures to review and ultimately reform 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 – were under way. The Committee once again requests the Government to indicate the progress made in repealing these restrictions, 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 is addressing a direct request on other points directly to the Government.