Definitive Report - Report No 246, November 1986

1. 90. The Pakistan Bank Employees' Federation (PBEF) presented a complaint of violations of trade union rights in a communication dated 16 December 1985. The Government supplied its observations in a communication dated 6 May 1986.
2. 91. 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. The complainant's allegations

1. 92. The PBEF, in its communication of 16 December 1985, alleges that the American Express Banking Corporation has been pursuing a policy of hostility and harassment against its employees since its establishment in Pakistan. According to the PBEF, two of its union's general secretaries and a president were dismissed or forced to leave the Bank's service and, on 3 October 1985, a further 54 dismissals took place with no reasons being given and without any reference being made either to the employees' union or to the PBEF. Among those dismissed were the union's Lahore General Secretary and its Karachi Vice-President, Publicity Secretary, Treasurer and three executive committee members.
2. 93. The PBEF states that this action not only violated the collective agreement between the PBEF and the Corporation, but also paragraph 26 of the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. The complainant explains that written and personal representations have been made on this problem to the Ministry of Labour for a negotiated settlement and reinstatement of dismissed employees, and to the United States Consulate and Embassy in Pakistan with no success so far.
3. 94. The background to the dismissals, according to the complainant, was a two-day trade union education seminar organised by the PBEF on 21 and 22 September 1985 on bank premises, the employer's permission only being given after the union threatened industrial action. The PBEF alleges that the jobs of the dismissed workers are now being assigned to temporary contract workers employed by the Bank on lower wages.

B. The Government's reply

1. 95. In its communication of 6 May 1986, the Government states that, according to information available to the Government, the management of American Express dismissed 54 employees solely because, after the computerisation of its operations in Pakistan, it no longer required their services. They were dismissed on a "last-in-first-out" basis and were given one month's wages in lieu of notice of termination of employment, as well as all legal dues such as gratuities and provident funds.
2. 96. The Government states that all commercial organisations in Pakistan have the right to reorganise their operations according to their needs and to maintain the strength of their staff as warranted by their own economic and business strategy. The American Express Bank Corporation has modernised its activities according to its projected needs and in the process it terminated the services of some of the employees who were no longer required. The Government states that, in dispensing with the services of some of its employees, the management has followed the requirements of the law of the land, i.e. the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance of 1968. Accordingly, the complainant's allegation is not well-founded.
3. 97. According to the Government, the Ordinance of 1968 protects the rights and privileges of workers and provides for redress of grievances arising out of wrongful dismissal of employees. From the copies of Standing Order No. 12 and section 25 A of the Industrial Relations Ordinance of 1969, which are supplied by the Government, it appears that under Standing Order 12 a)a worker who is aggrieved on the ground of the termination of his employment has the legal right to challenge the termination order and seek relief from a labour court established under the law. Even where a case has been decided by a labour court, the aggrieved party has the right to approach the labour appellate tribunal. The orders of the appellate tribunals - which are headed by high court judges - are final. The Government thus maintains that, in the present case, if the workers considered that the termination orders of the American Express Bank Corporation were illegal or improper, they should have sought relief under the law of the land. It explains, however, that when the Ministry approached the complainant to ascertain the facts in this case its reply showed that, without exercising the above-mentioned rights and exhausting the remedies available under the law, the union had approached the ILO by way of filing a complaint against the Government of Pakistan which is in no way directly involved in this case. The Government thus concludes that the motive for filing the complaint is to bring pressure on the Government to force it to interfere in the matter, a step which it considers not to be warranted by the facts or by the law.

C. The Committee's conclusions

1. 98. Before examining the substance of this case, the Committee considers it appropriate to draw the Government's attention to the approach it has previously taken in cases involving questions of internal procedures. The Committee has always considered that while the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration in its examination of a case, in view of its responsibilities its competence to examine allegations is not subject to the exhaustion of national procedures. (See, for example, 60th Report, Case No. 234 (Greece), para. 89.) On the other hand, the Committee has stated on several occasions that where national legislation provides for appeal procedures before the courts or independent tribunals, and these procedures have not been used for the matters on which the complaint is based, it should take this into account when examining the complaint. (See, for example, 14th Report, Case No. 88 (France-Sudan), para. 30.)
2. 99. In addition, the Committee would remind the Government that although the facts of this case do indeed involve dismissals by an employer in the private sector, it is incumbent upon the Government, especially as a consequence of the ratification of the freedom of association Conventions, to ensure that the principles of freedom of association, including the guarantees contained in the Conventions, are fully respected in the country.
3. 100. As regards the information available in the present case, the Committee observes that the reasons given by the complainant and by the Government for the dismissals in October 1985 are directly contradictory: the union claims that they were due to the involvement of those concerned in a union education seminar; the Government refers to computerisation of the Bank's operations which led to a reduction in staff. In addition, the Committee regrets that, in the Government's reply, no information is supplied nor explanations given regarding the two general secretaries and the president of the complainant union who were also alleged to have been dismissed.
4. 101. In past cases the Committee has stated that acts of anti-union discrimination should not be authorised under the pretext of dismissals based on economic necessity. (See, for example, 234th Report, Case No. 1173 (Canada/British Columbia), para. 82.) In this case, however, the complainant makes no reference to the modernisation measures taken by the employer and only refers in general terms to "a policy of hostility and harassment" against its employees and to the reassignment of work to temporary contract workers at lower wage rates. Reference is made to the collective agreement between the PBEF and the Corporation but, despite being given an opportunity under the procedures to present additional information and details in support of its allegations, the complainant has not supplied a copy of the agreement. Such further detail might have enabled the Committee to assess more thoroughly the relations between the union and the employer and, more specifically, the approach agreed on by both parties towards dismissals and technological change within the Corporation.
5. 102. The Committee, in the circumstances, can only reach the conclusion that insufficient information has been made available to it on the basis of which it can be determined whether or not any infringement of trade union rights has taken place. It, moreover, notes that in spite of the laws and procedures available to them, as described by the Government, the aggrieved persons do not appear to have had recourse to these at the national level in order to seek redress. In addition, the Committee notes that the 54 dismissed workers received all the financial and other benefits that were due to them.
6. 103. The Committee would, nevertheless, recall that governments should, where necessary, take measures to ensure that workers are protected against acts, including dismissal, that are likely to provoke, or have as their object, anti-union discrimination in respect of the employment of workers.