Definitive Report - Report No 292, March 1994

1. 131. In a communication dated 29 January 1993, the International Federation of Building and Woodworkers (IFBWW) submitted a complaint of violations of freedom of association against the Government of Pakistan. It sent additional information relating to its complaint in a communication dated 20 August 1993.
2. 132. The Government supplied its observations on the case in a communication dated 3 October 1993.
3. 133. Pakistan has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 134. In its complaint of 29 January 1993, the IFBWW alleges that the Industrial Relations Ordinance of 1969 (IRO) violates Convention No. 87, since the limited scope and restriction on the right to organize for certain categories of workers defined under it represents a barrier for workers to form and join trade unions, as illustrated by the deregistration of its affiliate, the Forest Employees' and Workers' Union - Balochistan Khuzdar, on 25 July 1992.
2. 135. The IFBWW explains that the Forest Employees' and Workers' Union - Balochistan Khuzdar (hereinafter "the union") has been struggling to obtain legal registration since 1987 and gives a summary of events leading to its registration in 1989 and its subsequent deregistration in 1992. On 22 October 1987, the union applied for registration under sections 5, 6 and 7 of the IRO but the office of the Registrar of Trade Unions - Balochistan refused registration on 27 October. The union appealed the Registrar's decision in the First Labour Court Balochistan which upheld the position of the union and instructed the Registrar to register the union on 31 October. An appeal was filed before the Labour Appellate Tribunal which set aside the order of the Labour Court and remanded the matter on 31 March 1988. The union again applied for registration which the Registrar refused on 28 April 1988. On 16 May the union appealed the Registrar's rejection of certification in the Third Labour Court which ruled in favour of the union on 29 June 1988. The IFBWW attaches a copy of this decision to its complaint (Annex 1). However, on 4 January 1989 the Registrar once again refused to certify the union. On 29 April 1989 an appeal was filed before the First Labour Court which ruled in favour of the union. As a result, the Registrar filed an appeal before the Labour Appellate Tribunal which however was rejected on 28 August 1989 (Annex 2). Therefore, on 16 September 1989 the union received certification of registration (Annex 3).
3. 136. After certification, the union contends that the Forestry Department of Balochistan attempted to create a rival union. Under Pakistani law, if two or more unions exist in an establishment or workplace, the Registrar must conduct a secret ballot to ascertain which union represents the majority of the workers in order to issue a certificate for collective bargaining. As a result, a ballot was conducted and on 22 September 1990 the union was certified as bargaining agent for workers employed in the Forestry Department (Annex 4). The union points out that after having lost in its efforts to decertify the union through a ballot, the Forestry Department initiated action in the High Court of Balochistan. The Forestry Department argued that forestry workers, as government employees, were civil servants and as such under the law, could not form trade unions. It further argued that it was neither an establishment nor an industry within the meaning of the Standing Orders Ordinance of 1968 and therefore its employees could not be defined as "workers" and could not form an association.
4. 137. The High Court ruled in favour of the Forestry Department's appeal, basing its judgement on the definition of the term "workman/worker" under the IRO. The court stated, inter alia, that: "In order to form a union under the IRO, each category of the employees has to prove the nature of work or the salary being drawn by such a category and all other ingredients which bring them into the category of a worker or workman under the Factories Act, or Workmen's Compensation Act, before formation of any union or applying to the Registrar for registration of such a union. In fact, employees working in a government department and whose services are regulated under statutory rule are prima facie civil servants unless they prove through evidence otherwise that they fall within the category of worker/workman under the Factories Act, 1934, or the Workmen's Compensation Act, 1923." Hence the High Court concluded that many of the forestry workers who had joined the union could not be defined as "workmen" but rather were civil servants. As such, it deregistered the union on 25 July 1992. The court did, however, allow that those workers who could be defined as "workmen" could make a fresh application to the Registrar for union recognition. The union appealed to the Supreme Court which, however, upheld the High Court's decision on 7 October 1992.
5. 138. The IFBWW contends that the definition of "workmen" under the IRO is worded in such a way that it excludes the vast majority of workers and employees from forming or joining trade unions. The IFBWW also underlines that, regardless of the definition applied by the High Court in defining some of the Forestry Department workers as "civil servants", these workers should not be barred from forming a trade union as prescribed by Convention No. 87. Finally, the IFBWW contends that the Forestry Department's continuous pursuit of the union in the courts, its alleged efforts to set up an alternative union and the Registrar's persistent denial of the union's legal registration all represent unacceptable interference on the part of public authorities aimed at restricting forestry workers' rights to organize a trade union. It adds that the complexity of the judicial system is not conducive to the establishment of trade unions in general and as such, acts as a barrier to freedom of association in Pakistan.

B. The Government's reply

1. 139. In its communication of 3 October 1993, the Government submits that the Balochistan High Court had examined in depth the petition concerning the legal registration of the Forest Employees' and Workers' Union, but having taken note of the relevant provisions of the labour laws, ruled that the registration should be withdrawn. However, it also ruled that those members of the union who fell within the category of "worker/workman" under the Factories Act, 1934, the Workmen's Compensation Act, 1923, and the Industrial Relations Ordinance, 1969, were entitled to file fresh applications for registration to the Registrar.
2. 140. The Government further points out that the forest employees filed an appeal in the Supreme Court of Pakistan which upheld the decision of the High Court. It ruled that in the present case, the primary objective of the Forestry Department was to explore all avenues for the advancement of a particular field and to cater to the needs of the public at large. The resulting cost was to be borne from public funds. The function of the Forestry Department was to protect the forests from destruction which was necessary for a healthy environment. For the performance of its duties, it carried out research in its specific field. From the nature of its work, it could not be deduced by any stretch of the imagination that it was running any industry. Whatever little business that was done was ancillary to the main objective. Moreover, the forestry workers were not employed to run any industry. Thus, the ingredients of any industry were lacking in the present case.
3. 141. The Government is of the view that those forestry employees who are allowed by the courts to file a fresh application for registration to the concerned Registrar should do so and those who do not fall under the category of "worker/workman" should refrain from such illegal activities. It is quite clear that the decision of the courts is based on the national legal framework which is not in contravention with the relevant international labour standards. The Government further submits that it has always honoured its commitments under ratified international labour standards including Conventions Nos. 87 and 98. Moreover, article 17 of the Pakistani Constitution adequately guarantees trade union rights throughout the country.

C. The Committee's conclusions

1. 142. The Committee notes that the allegations in this case concern the fact that the definition of the term "worker" in the industrial relations legislation restricts the right to organize, as well as acts of interference by the public authorities aimed at barring Forestry Deparment workers from forming a trade union. The complainant contends more generally that the restrictions contained in national legislation on the right to organize for certain categories of workers are incompatible with Convention No. 87.
2. 143. The Committee notes, in effect, that the Forest Employees' and Workers' Union - Balochistan Khuzdar (the union) had attempted to obtain legal registration since 1987, but only received certification of registration on 16 September 1989. The Committee notes with concern that this delay was attributable to the Registrar's persistent refusal to register the union during the above-mentioned period. It considers this delay to be all the more serious since it would appear that the Registrar refused to certify the union despite having been instructed to do so by various judicial instances which ruled in favour of the union on appeal (notably on 31 October 1987, 29 June 1988 and 29 April 1989). In this respect, the Committee would recall that if the conditions for the granting of registration are tantamount to obtaining prior permission from the public authorities for the establishment or functioning of a trade union this would undeniably constitute an infringement of Convention No. 87. Moreover, where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude, these factors are such as to create a serious obstacle for the establishment of a trade union and lead to a denial of the right to organize without previous authorization (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 275 and 281).
3. 144. The complainant further asserts that following registration of the union on 16 September 1989, the Forestry Department of Balochistan initiated action in the High Court of Balochistan, arguing that forestry workers, as government employees, were civil servants and, as such under the law, could not form trade unions. In the Government's view, the High Court ruled in favour of the Forestry Department's appeal only after having taken account of the relevant provisions of the national labour laws which were not in contravention of the relevant international labour standards. The Committee would, however, draw the Government's attention to the fact that the standards contained in Convention No. 87 apply to all workers "without distinction whatsoever," and are therefore applicable to employees of the State; in view of the importance of the right of employees of the State and local authorities to constitute and register trade unions, the prohibition of the right of association for workers in the service of the State is incompatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to establish organizations of their own choosing without previous authorization (see Digest, op. cit., paras. 213 and 215). The Committee therefore requests the Government to take the necessary steps to ensure that registration is granted once again to the Forest Employees' and Workers' Union - Balochistan Khuzdar.