Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 238, Marzo 1985

1. 173. The Committee examined this case, in the absence of a reply from the Government, at its February 1984 meeting and submitted a report to the Governing Body (see 233rd Report, paras. 161 to 175, adopted by the Governing Body at its 225th Session, February-March 1984). The Government supplied its observations on the complaint in a communication of 12 November 1984.
2. 174. 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. 175. The complaint in this case concerned the continuing application of the Pakistan Essential Services (Maintenance) Act, 1952 and the Rules issued thereunder in 1962. According to the complainant, a Supreme Court interpretation (No. 85/79) of this Act deprived the workers covered by it of the right to appeal to a court or to any other independent and impartial authority in cases of individual grievances concerning acts of anti-union discrimination in respect of their employment. The complainant attached a list of names of alleged victims of anti-union discrimination with a brief history of the circumstances leading to each dismissal, demotion or transfer. The complainant argued that the Essential Services (Maintenance) Act was a piece of legislation which was specifically meant for application in times of national emergency and its application in normal conditions was unjustified in view of the protection afforded to public utilities in the Industrial Relations Ordinance of 1969.
2. 176. The complaintant further alleged that all trade union activities had been banned in the following organisations: the Pakistan Television Corporation, the Pakistan Broadcasting Corporation and the Pakistan International Airlines Corporation (PIA) as well as in hospitals and the teaching profession.
3. 177. Lastly, according to the complainant, the existing labour legislation in Pakistan denied the employees of the Water and Power Development Authority (WAPDA), the Railways and the Telecommunication Organisation the right to collective bargaining.
4. 178. In the absence of a reply from the Government, the Governing Body adopted the Committee's recommendations on the following aspects of the case: - With regard to the allegations of anti-union discrimination, it urged the Government to ensure that all cases of dismissal contained in the complaint would be examined by appropriate review bodies and that reinstatement would be ordered in any cases involving dismissal resulting from the exercise of legitimate trade union activity; it requested the Government to keep it informed of any action taken in this respect. - As regard the prohibition of trade union activity in certain important public enterprises, laid down in Martial Law Regulation No. 52 of 1981, it considered that such a prohibition constituted a serious violation of freedom of association; it expressed the firm hope that this Regulation would be repealed as soon as possible and requested the Government to transmit information on any measures taken to this effect. - As regards the allegation that collective bargaining rights were denied to workers in certain other public corporations (water and power, railways, communications), it requested the Government to communicate information on any action taken to ensure that full negotiating rights were enjoyed by the workers in the corporations referred to, in accordance with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) ratified by Pakistan. - The Committee referred the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.

B. The Government's reply

1. 179. In a communication dated 12 November 1984, the Government states that the Pakistan Essential Services (Maintenance) Act, 1952 is not declared applicable to any employment or class of employment unless there is irrefutable evidence that such employment or class of employment is essential for: a)securing the defence or the security of Pakistan or any part thereof, or b)the maintenance of such supplies or services as relate to any of the matters with respect to which the Federal Government has power to make laws and are essential to the life of the community.
2. 180. The Government states that being fully aware of the contribution which workers have made and are making to the progress and prosperity of the nation, it would not take any measures which might curtail the freedom of employees and thereby become a party to labour unrest, unnecessary loss in production, as well as criticism at the national and international levels. However, when applying the provisions of the Essential Services (Maintenance) Act, the Government has the larger interests of the country in view and not those of a particular class or section of the population. According to the Government, it is incorrect to say that it resorts to the provisions of the Act just to suppress the liberties of workers and to curb the rights available to them as free citizens of the State which they are otherwise entitled to because of ratification by Pakistan of the ILO Freedom of Association Conventions.
3. 181. Addressing the specific allegations in the complaint, the Government notes that in recent years workers employed in undertakings like PIA, WAPDA and the Telecommunications Organisation have acquired technical skills, know-how and professional calibre of a high order which enable them to obtain jobs at comparatively high wages and better benefits in other countries. According to the Government, if it does not check the movement of these workers, they would seek lucrative opportunities of employment in labour deficit countries, creating a wide gap between demand and supply in the national labour market which would adversely affect the functioning of the installations within the country. For example, the Government cites the situation in WAPDA which is responsible for generating and distributing electricity to the whole country: all power supplies are subject to continuous 24-hour uninterrupted operation by WAPDA men. The Government states that the question arises as to whether the skill and ability of the workers in WAPDA should become a disqualification for these men to seek better paid jobs outside. The obvious answer would be a "no", but seen from the management as well as national viewpoint as elaborated above, no country and no employer would like to train its workers and then allow them to leave it and recommence training new staff.
4. 182. As regards the alleged lack of appeal procedures in cases of individual grievances, the Government adds that under the Industrial Relations Ordinance, the National Industrial Relations Commission (NIRC) had been vested with the authority to hear the collective as well as individual grievances of the workers. However, recently the Supreme Court decided that the NIRC can no longer hear and decide individual grievances of employees covered by the Pakistan Essential Services (Maintenance) Act, 1952 and this has given rise to legal problems as regards the settlement of individual grievances. The Government states that it is seized of the issue and is actively attempting to find a remedy. It will inform the ILO of any steps taken in this regard.
5. 183. Lastly, the Government refers to the influx of more than 3 million refugees which has given rise to an abnormal situation in the country affecting almost all its institutions whether they be social, political or economic. In these circumstances, the Government has to have recourse to measures which ensure both law and order and the maintenance of services.

C. The Committee's conclusions

1. 184. The Committee takes note of the Government's explanations according to which the continuing application of the Essential Services (Maintenance) Act of 1952 to certain sectors of the economy is necessary because of their essential character, the risk of losing highly trained workers to overseas markets and the abnormal situation created by the influx of refugees. The Committee also notes that the Government is attempting to find a solution to the legal problem as regards settlement of individual grievances under the Act given the recent Supreme Court decision whereby the Industrial Relations Commission has jurisdiction only to hear collective disputes.
2. 185. While the Committee appreciates the problems referred to by the Government, it would first point out that the criterion used both by it and by the Committee of Experts on the Application of Conventions and Recommendations in determining whether any service is essential in the strict sense of the term is whether the service in question is one whose interruption would endanger the life, personal safety or health of the whole or part of the population (see General Survey on Freedom of Association and Collective Bargaining, ILC, 69th Session, 1983, Report III (Part 4(B)), para. 214). Under section 5 of the Essential Services (Maintenance) Act and section 3 of the 1962 Rules issued thereunder, workers engaged in any employment to which the Act applies are prohibited from refusing to work and have their wages and other conditions of work regulated by the Chairman of the NIRC. The Government acknowledges that the services referred to by the complainant are covered by the Act, which has effect notwithstanding the Industrial Relations Ordinance No. III of 1969 (section 7 A)of the Essential Services Act). In addition, it should be noted that under section 33 of the Industrial Relations Ordinance, 1969, the following services have been declared public utility services in which no strikes may take place: (1) the generation, production, manufacture or supply of electricity, gas, oil or water to the public; (2) any system of public conservancy or sanitation; (3) hospitals and ambulance service; (4) fire-fighting service; (5) any postal, telegraph and telephone service; (6) railways and airways; (7) ports; and (8) watch and ward staff and security services maintained in any establishment. Moreover, Martial Law Regulation No. 52 of 1981 places a total ban on trade union activity in the Pakistan International Airlines Corporation (section 3) and has effect notwithstanding anything contained in the Essential Services (Maintenance) Act and the Industrial Relations Ordinance (section 1).
3. 186. As regards the restriction placed on employees of the Pakistan International Airlines Corporation, the Committee cannot but repeat the conclusions it reached in its previous examination of this case, namely that such a prohibition constitutes a serious violation of freedom of association. It therefore again expresses the firm hope that Regulation No. 52 will be repealed as soon as possible.
4. 187. As regards the strike ban imposed by section 33 of the Industrial Relations Ordinance, the Committee would endorse the 1983 observation made by the Committee of Experts on the Application of Conventions and Recommendations in the context of Convention No. 87 to the effect that such a restriction should be limited to essential services in the strict sense of the term as defined above. Although the Committee has found in the past (see, respectively, 199th Report, Case No. 910 (Greece), para. 117 and 234th Report, Case No. 1179 (Dominican Republic), para. 299) that the hospital sector and services for the supply of water are essential under this criterion, it has, on the other hand, considered that the petrol and oil industry, ports and transport services are not essential in the strict sense of the term (see General Survey, idem, para. 214.) The Committee accordingly again requests the Government to take appropriate steps to ensure that full trade union rights, including the right to negotiate collectively their conditions of employment, are restored to the workers in the industries referred to in the complaint.
5. 188. As for the allegation that the Supreme Court decision No. 85/79 of 1 December 1981 deprives workers in sectors designated under the Essential Services (Maintenance) Act of a forum for their individual grievances in respect of anti-union discrimination, the Committee would point out that section 7 of the Act provides for redress through the normal courts. The Supreme Court drew attention to this in its judgement (pages 11 and 12): ... if the respondents (the NIRC and a dismissed data processing manager of the Karachi Electricity Supply Corporation Limited) felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceedings as provided by section 7 (of the Act)... In these circumstances and given that the Government is attempting to resolve the legal problems associated with the Supreme Court's decision, the Committee would repeat its appeal to the Government as regards the numerous alleged cases of anti-union discrimination cited by the complainant, namely that it ensure that all cases of dismissal, demotion or transfer are examined by the National Industrial Relations Commission or the courts and that reinstatement is ordered in any cases involving dismissal resulting from the exercise of legitimate trade union activities. It requests the Government to keep it informed of steps taken in this regard.
6. 189. The Committee would again refer the legislative aspects of this Case to the Committee of Experts on the Application of Conventions and Recommendations.