Report in which the committee requests to be kept informed of development - REPORT_NO281, March 1992

1. 160. The Committee already examined this case at its May-June 1991 meeting, when it presented interim conclusions (278th Report, paras. 451 to 472, approved by the Governing Body at its 250th Session).
2. 161. The Government sent its observations on the allegations in a communication dated 22 August 1991.
3. 162. Pakistan has ratified both 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. 163. The PNFTU alleged that almost all multinational corporations operating in Pakistan tried to undermine union membership by offering "promotions" to union members and activists without actually giving them managerial responsibilities. The complainant had made the same allegations to the Committee of Experts on the Application of Conventions and Recommendations in the context of Pakistan's application of Convention No. 87. According to the PNFTU, this manoeuvre transferred the workers concerned into the category of "employers" as defined in the Industrial Relations Ordinance of 1969 and obliged them to resign from union membership. The complainant cited specific examples occurring at the Deutsche Bank (Asia), Grindlays Bank NZ, Bank of America, American Express, National Cash Register Ltd., Royal Insurance Company, Gestetner Company and NCR Corporation (where in some cases the management staff/clerical staff ratio had reached 50:50 or even 60:40, or where there were no officially designated clerical staff left at all), as well as details of alleged anti-union tactics by the Singer Company culminating with a 1990 Labour Court decision ordering the reinstatement of an unfairly dismissed employee. It also alleged that no employee dared to file a complaint under the Ordinance for fear of having his or her periodic contracts cancelled.
2. 164. The Committee observed from the available information that the banks and companies mentioned had adopted promotion policies which resulted in unusually high management/worker ratios, with the managers even outnumbering the workers in some enterprises. It further observed that while "promoted" employees were offered salary raises, they continued to do the same work as before and did not obtain any additional responsibilities or managerial authority. The Committee was therefore of the opinion that these "promotions" were clearly designed to undermine the membership of workers' trade unions, some of which were severely affected and others eliminated completely. It concluded that the actions complained of violated the principles of freedom of association.
3. 165. At its May-June 1991 Session, the Governing Body, in the light of the Committee's interim conclusions, approved, inter alia, the following recommendations:
   • - The Committee urges the Government to submit detailed replies without delay on the allegations.
   • - The Committee requests the Government to take the appropriate measures with a view to modifying the 1969 Industrial Relations Ordinance, so as to prevent employers from undermining workers' trade unions through artificial promotions of workers.
   • - The Committee requests the Government to keep it informed of the trade union situation in the companies involved.
   • - The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

B. The Government's reply

1. 166. Regarding the allegations of false promotions and that workers would forego the chance of further promotions if they refused to accept the transfers and resign from their union, the Government points out that the Industrial Relations Ordinance of 1969, in section 2(viii), defines "worker" as not including any person who, being employed in a supervisory capacity simultaneously earns more than Rs.800 per month or performs, either because of the nature of the duties attached to the office or by reason of the powers vested in him, functions of a mainly managerial nature. The Government maintains on the basis of that definition that an employee would be excluded from the term "worker" only if the two requirements were fulfilled, namely to be working in a supervisory capacity and to be drawing at the same time monthly wages of over Rs.800.
2. 167. The Government notes that, in the present case, the complainant alleges that while the wages were being raised, the individuals were not being vested with the authority otherwise belonging to managers, an authority of supervision and control of an establishment specifically referred to in section 2(viii)(b) of the Ordinance when describing the functions of "employers" for the purposes of that legislation. The Government thus argues that the act of only increasing the emoluments without conceding the right to supervise and manage the affairs of the establishment cannot exclude workers from the definition of "worker" set out in the Ordinance. In addition, the Government states that, under section 15(i)(a) of the Ordinance, the inclusion in any contract of employment of a condition seeking to restrain the right of any person who is a party to that contract to join a trade union or to continue to belong to one is an unfair labour practice on the part of the employer. Likewise, section 15(i)(c) stipulates that discrimination against any person with regard to any employment, promotion, condition of employment or working condition on the grounds that such person is or is not a member or officer of a trade union is also an unfair labour practice by the employer.
3. 168. The Government states that if the complainant feels that employers are imposing conditions on their employees to receive higher wages without any supervisory role - which would be an unfair labour practice - it could petition the national labour courts, including the National Labour Relations Commission, set up exclusively to hear and adjudicate disputes between labour and management including unfair labour practices. Section 22(A)(8)(g) of the Ordinance lays down that the Commission shall deal with allegations of unfair labour practices specified under sections 15 and 16 on the part of the employers, workmen, trade unions of either them or persons acting on behalf of any of them, whether committed individually or collectively and shall take measures calculated to prevent any employer or workman from committing unfair labour practices. The penalties applicable under the Ordinance are, in the case of an unfair labour practice on the part of an employer under section 15, one year's imprisonment extendable for a further six months and a fine of Rs.5,000 or both.
4. 169. The Government concludes by stating that the PNFTU has no claim against the Government as such. According to the Government, if the PNFTU is aggrieved by certain management decisions in some of the multinational companies operating in Pakistan, it could seek redress by approaching the judicial bodies established for that purpose in the country, the law on the subject being quite clear. This way the complainant can seek justice if it believes that its trade union rights have been infringed.

C. The Committee's conclusions

1. 170. At the outset, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations has been apprised of similar allegations by the same complainant organisation (the Pakistan National Federation of Trade Unions) in the context of Pakistan's application of Convention No. 87. In its 1991 observation in this respect, the Committee of Experts pointed out that it was not necessarily incompatible with the requirements of Article 2 of the Convention to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements be met: first, that such workers have the right to form their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organisations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership. In order to enable it to make an informed assessment, the Committee of Experts asked the Government to provide an indication of the proportion of the workforce who are regarded as being "employers" within the terms of the legislation and to provide information as to the number and size of organisations that have been formed to represent the interests of such persons. The Committee of Experts is to address this question once again at its forthcoming March 1992 meeting.
2. 171. Without prejudice to the further examination of this issue by the Committee of Experts, this Committee is in a position, on the basis of the facts and figures placed before it, to reach conclusions on these allegations of anti-union practices. The Committee is bound to point out, in the first place, that it is for the Government to ensure in law and practice the application of the principles of freedom of association and, in particular, of the Conventions that it has ratified. With regard to the substance of the case, the Committee notes the Government's reply that workers could only legally have their status changed to become supervisory staff if two requirements are fulfilled, and that if an employee feels that his or her trade union rights are infringed by a practice where only one such requirement was met, he or she should approach the appropriate national courts for redress. Although the Government describes in its reply the legislative and judicial steps available to challenge unfair labour practices, the Committee notes the comment made by the complainant that aggrieved employees would not petition the courts for redress.
3. 172. In the light of all this, and notwithstanding any proceedings that the aggrieved employees might feel able to go ahead with at the national level, the Committee considers that the law, because of its wording, can result in broad categories of employees being denied the right to organise. The Committee observes in particular that while employees were offered salary raises, they did not obtain any additional responsibilities or managerial authority. The Committee therefore repeats the conclusions that it reached in its earlier examination of this case, namely that these staff movements were clearly designed to undermine the membership of workers' trade unions, some of which were severely affected in practice. It therefore once again urges the Government to take measures with a view to strengthening the application of the protective provisions in the Industrial Relations Ordinance, 1969, so as to prevent the undermining of workers' organisations through artificial promotions. It also requests the Government to take measures with a view to protecting adequately workers who use legal procedures in cases of violations of the law. It again draws its conclusions in this case to the attention of the Committee of Experts in its examination of Pakistan's application of Convention No. 87 at its forthcoming meeting. It once again requests the Government to keep it informed of the situation of the trade unions in the enterprises in question.