Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 294, Junio 1994

1. 372. In a communication dated 12 July 1993, the International Federation of Building and Wood Workers (IFBWW) and the International Confederation of Free Trade Unions (ICFTU) submitted a complaint of violations of freedom of association against the Government of Pakistan. The All Pakistan Federation of Labour (APFOL) presented its complaint in a communication dated 24 February 1994.
2. 373. At its meeting in March 1994 (see 292nd Report, para. 10), the Committee observed that despite the time which had elapsed since the presentation of this complaint, it had still not received the Government's observations and information. The Committee drew the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, it could present a report on the substance of the case even if the information and observations requested from the Government had not been received in due time. Since that urgent appeal, the Government indicated, in a communication dated 26 April 1994, that it sent the information concerning this complaint to the agencies concerned for comment and that it would send these comments as soon as they were made available. The Committee has, however, received no further information from the Government on this matter.
3. 374. 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 complainants' allegations

1. 375. In their complaint of 12 July 1993, the IFBWW and the ICFTU allege generally that legislative restrictions, particularly as regards the creation of free trade zones, contravene Conventions Nos. 87 and 98 and more specifically contend that trade union rights have been violated at the Daewoo motorway construction project.
   • General legislative restrictions
2. 376. As concerns the general allegations of legislative suppression of workers' rights, the complainants first refer to section 25 of the Export Processing Zones Authority Ordinance, 1980, which provides that the Government may exempt export processing zones (EPZs) from the application of the laws and indicates that the Government has used this provision to exempt EPZs from the Industrial Relations Ordinance (IRO) of 1989 which includes the rights of workers to establish and join trade unions. Furthermore, section 4 of the Export Processing Zone (Control of Employment) Rules of 1982 deprives workers employed in EPZs of the right to strike. Despite repeated criticism by the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards, no improvement could yet be noted in the situation.
3. 377. The complainants state that the right to organize and to form trade unions is prohibited or not provided for by law in the following cases: government services; Pakistan Security Papers; Pakistan Security Printing Corporation; Pakistan Television Corporation; Pakistan Broadcasting Corporation; Civil Aviation Authority; agricultural labour; hospitals and clinics; educational institutions; Wah ordinance factories; export processing zones; Pakistan Council of Scientific and Industrial Research; Canteen Stores Department; National Logistic Cell; Defence Housing Authority, Karachi; civilians of the defence services; and self-employed persons.
4. 378. Furthermore, the complainants allege that section 2(viii)(c) of the Industrial Relations Ordinance now grants the Government the power to restrict freedom of association with respect to any category of workers merely by issuing a notification declaring such workers to be servants of the State.
5. 379. Workers in all of the above-mentioned activities, as well as banks and financial institutions and services declared essential under the Pakistan Essential Services (Maintenance) Act, 1952, are also deprived of the right to bargain collectively.
6. 380. Finally, the complainants refer to the 1992 Finance Act which grants the Government the authority to issue notification of the creation of an EPZ (Industrial Zone) which is then exempt from the coverage of all Pakistani labour laws, including the Industrial Relations Ordinance which protects workers' rights to organize and bargain collectively.
7. 381. The complainants thus contend that all of the above-mentioned provisions violate the spirit and the letter of Conventions Nos. 87 and 98, as well as the purpose of paragraph 45 of the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy which provides that special incentives to attract foreign investment should not include any limitations of the workers' freedom of association or the right to organize and to bargain collectively.
   • Awami Labour Union-Daewoo Motorway Construction Project
8. 382. The complainants state that the Pakistan authorities offered a generous package of concessions and incentives to the Daewoo Group in May 1992 to develop the Daewoo Pakistan Industrial Complex covering 500 acres in the Port Qasim area (Karachi). This project was also to include the construction of a 339 kilometre motorway between Islamabad and Lahore.
9. 383. The complainants indicate that it had been reported that, among a number of financial incentives, including tax exemption, the project was granted to Daewoo with the assurance that the complex would be exempt from the application of all Pakistani labour laws, including the IRO, the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1969, the Workmen's Compensation Act, 1923, the Factories Act, 1934, the Payment of Wages Ordinances, 1961 and the Provincial Employees Social Security Ordinance, 1968.
10. 384. On 18 December 1992, with the assistance of the All Pakistan Federation of Labour (APFOL), through its Tarbela Construction Federation of Labour, the Awami Labour Union-Daewoo Motorway Construction Project was formed and on 19 December the founding meeting approved the constitution, elected officers and resolved to seek registration.
11. 385. The request for registration was submitted to the Registrar on 21 December 1992 and, according to Pakistani law, approval or rejection of the application should be made within 15 days. This deadline was not met and, in the meantime, APFOL had informed the IFBWW that Daewoo had put a condition in the appointment letter of workers stating that their conditions of employment would not be governed by the labour laws of Pakistan. (A sample copy of the appointment letter was attached to the complaint.) Soon after the formation of the union, the Daewoo Corporation terminated the services of 50 union workers.
12. 386. The Awami Labour Union approached the National Industrial Relations Commission (NIRC) in order to obtain an order restraining Daewoo Corporation from transferring or terminating any of its members pending the registration application. This order was granted on 28 December 1992. On 30 December, the Daewoo management offered the terminated workers extra benefits in return for the withdrawal of their cases from the NIRC. Furthermore, the Daewoo Corporation issued a press statement defying the NIRC's order and insisting that the company was operating with the backing of the Prime Minister of Pakistan. Following the dismissal of the 50 workers, the Daewoo Corporation summarily dismissed the union's demands for reinstatement and expressed its inability to negotiate any other agreement with the union.
13. 387. By mid-January, the Registrar had still not replied and the General Secretary of the Awami Labour Union reminded the Registrar of the application and inquired into the delay. On 16 January 1993, the Registrar replied raising legal objections to the union documents and the union met on 27 January to consider these objections so that a reply could be submitted before 30 January.
14. 388. The complainants allege that the Daewoo Corporation circulated a top secret letter to all deputy police commissioners, including a list of all union members at Daewoo operations, requesting them to provide "whatever necessary information for the task in hand" and to "inform the undersigned of the necessary action taken". (A copy of this letter was attached to the complaint.) On 27 January 1993, 32 union officers were arrested, including Aslam Adil, President of Tarabela Construction Federation of Labour and General Secretary of the newly established Awami Labour Union. These arrests reportedly took place during a constitutional union meeting and were carried out under the supervision of the deputy commissioner, accompanied by 100 police officers.
15. 389. The 32 detained unionists were held together in an 8 by 10 square foot room at Said Kwala police station, 250 kilometres from Lahore, without registration of any kind, nor warrant, nor any charges made against them. During the detention, the workers' valuables were confiscated and never returned. The complainants state that, on 28 January, the deputy police commissioner offered the detainees bribes and presented them with typed statements of withdrawal from the union. When they refused to sign, the complainants allege that the deputy commissioner ordered the police to "take all of them away and give them a thorough thrashing so they come to their senses".
16. 390. A wide range of reports were received of torture, beating and humiliation inflicted by the police in an effort to pressure workers into renouncing their union affiliation. The workers were held in inhumane conditions, without decent food or water. APFOL eventually established their whereabouts on 30 January and demanded their release. On 4 February 1993, 14 workers were released and the remainder were transferred to Sheikhupura jail and held with mentally insane prisoners. During the detention of the workers at this jail, reports were made of hanging workers upside down from the ceiling, the administration of electric shocks and forcing workers to sit naked on slabs of ice throughout the night. The workers have identified the prison authorities involved and APFOL has documented all the complaints of torture (a copy was attached to the complaint). The remaining 18 trade unionists were released on 6 February 1993.
17. 391. All of the workers were released on bail after being charged with illegal assembly under section 144 of the Pakistan Penal Code.
18. 392. On 28 January 1993, the Pakistan Government declared all classes of workers at the Daewoo motorway project to be covered by the Pakistan Essential Services (Maintenance) Act, 1952, which suppresses the right to collective bargaining and industrial action.
19. 393. According to the complainants, a letter from the Punjab Home Secretary dated 20 January 1993, instructed the deputy commissioners of seven districts to firmly handle the matter of the Daewoo union and to take it "to its logical conclusion". Furthermore, they allege that a top secret letter was issued by the Federal Secretary of the Ministry of the Interior to the Chief Secretary of the Punjab Provincial Government asking him to give special instructions to Secretaries of Home and Labour Departments against the Daewoo union.
20. 394. On 13 February 1993, APFOL wrote to the IFBWW alleging that the Prime Minister was taking a direct interest in maintaining his promises to Daewoo that a union would not be formed or registered at the motorway construction project and alleging that Daewoo management was spending significant sums of money on Labour Department officials and district administrations in order to ensure cooperation against the union's registration efforts. The union alleged that Daewoo Corporation offered bribes to union members encouraging withdrawal from the union, in order to reduce the number of union members below the legal level required for registration.
21. 395. On 14 February 1993, the union filed an appeal in the Punjab Labour Court against the Registrar's unnecessary delaying of the union's registration. The Registrar formally rejected the union's application for registration on 20 February 1993. On 2 March, the Punjab Labour Court No. 6 in Rawalpindi directed the Registrar to register the union within the shortest possible delay. On 4 March, the Registrar submitted the matter to the Labour Appellate Tribunal complaining that "if the operation of the order of the Labour Court for registration of the union is not suspended, he shall suffer irreparable loss". APFOL contends that this appeal proves that the Registrar was acting on behalf of the employer, Daewoo Corporation, instead of fulfilling his statutory function as Registrar and alleges that senior Islamabad authorities approached officials of the Labour Appellate Tribunal in support of the Registrar and Daewoo.
22. 396. On 15 March 1993, the Labour Appellate Tribunal accepted the Registrar's position and suspended the Labour Court's instruction that the union be registered.
23. 397. The complainants state that, since the formation of the union in December 1992, more that 395 union members have been dismissed and more than 205 members have been arrested.
24. 398. On 8 May 1993, APFOL informed the IFBWW that Daewoo representatives had written prepared statements of withdrawal from union membership, including clauses which state that the workers had signed the union membership forms but had no knowledge that this meant they would become union members and that they had not participated in the formation of the union and the constitution, nor in the election of union office-bearers. According to the complainants, Daewoo has thus succeeded in making 40 of the 400 dismissed members renounce union membership.
25. 399. In its complaint dated 24 February 1994, the All Pakistan Federation of Labour states that a Labour Department memorandum dated 11 January 1994 was issued to the Solicitor of the Government of Punjab instructing that the appeal before the Labour Appellate Tribunal challenging the order to register the Awami Labour Union should be withdrawn since the union had produced evidence showing that the discrepancies concerning their registration had been removed (a copy of the memorandum was attached to the complaint).
26. 400. Daewoo Corporation had filed an application on 13 May 1993 impleading itself as a party in the revision petition filed against the order for registration of the Punjab Labour Court by the Registrar and, having learned that the Registrar might withdraw its petition, filed its own revision petition on 11 October 1993 challenging that the Awami Labour Union is largely made up of outsiders who are not employees of Daewoo and that its existence is not only in violation of the IRO, but is also likely to hamper the progress of the motorway project. Final arguments in this case were scheduled for 13 February 1994.
27. 401. APFOL complains of the delay in coming to a final decision on this case, noting that over one year has passed and the union has still not been registered. It further alleges that the Labour Department is presently conspiring with Daewoo Corporation to register two puppet unions thus blocking the Awami Labour Union.
28. 402. Finally, APFOL indicates that the government declaration of the Daewoo motorway project as an essential service for a period of six months under the Essential Services (Maintenance) Act was extended for another six months on 28 July 1993.

B. The Committee's conclusions

1. 403. The Committee deeply regrets that, despite the time which has elapsed since the presentation of this complaint, and despite being invited to do so on several occasions, including by means of an urgent appeal, the Government has not formulated its comments and observations on the allegations brought by the complainant organizations; this has rendered the Committee's examination of the allegations very difficult.
2. 404. Under these circumstances, however, and in accordance with the applicable rule of procedure (see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session), the Committee feels obliged to submit a report on the substance of the case, even without the information which it had hoped to receive from the Government.
3. 405. The Committee first of all reminds the Government that the purpose of the procedures established by the International Labour Organization for examining allegations of violations of freedom of association is to ensure that this freedom is respected in law and in fact. While these procedures protect governments against unreasonable accusations, they must recognize for their part the importance for the protection of their own good name of formulating for objective examination detailed replies to such allegations made against them. (See First Report of the Committee, para. 31.)
4. 406. The Committee observes that this case concerns allegations of general legislative restrictions with respect to freedom of association, and more specifically, government obstruction of the registration of the Awami Labour Union-Daewoo Motorway Project and anti-union acts undertaken by the Daewoo Corporation and the Pakistani Security Forces, including dismissals, arrests and torture of union members, representing a severe violation of Conventions Nos. 87 and 98 (ratified by Pakistan).
5. 407. As concerns the general legal restrictions, the Committee notes that the Export Processing Zones Authority Ordinance, 1980, applies to all industrial undertakings set up or operating in the export processing zones and grants authority to the federal Government, under section 25, to exempt, by notification, any zone from the operation of all or any of the provisions of any law. It further notes that section 4 of the Export Processing Zone (Control of Employment) Rules, 1982, prohibits the right to strike for all employees in EPZs. Finally, it notes that section 14 of the 1992 Finance Act provides that the Industrial Relations Ordinance, and such other laws as the federal Government may specify by notification, shall not apply to a foreign company investing in an industrial undertaking within an Industrial Zone, and takes note of the list of services specified by the complainants which are denied the right to organize and to bargain collectively.
6. 408. The Committee notes that the Committee of Experts on the Application of Conventions and Recommendations has been raising observations with respect to the legislative restrictions on free collective bargaining and the denial of the right to organize for certain categories of workers for many years now and considering, in particular, that section 25 of the Export Processing Zones Ordinance and section 4 of the Export Processing Zone Rules were not in conformity with Conventions Nos. 87 and 98, has called upon the Government to remove these restrictions on trade union membership and activity.
7. 409. The Committee would point out that the standards contained in Convention No. 87 apply to all workers, "without distinction whatsoever", and recalls the ILO Tripartite Declaration of Principles concerning Multinational Enterprises which provides that special incentives to attract foreign investment should not include any limitation of the workers' freedom of association or the right to organize and bargain collectively. The Committee therefore considers that the above-mentioned provisions are contrary to the basic principles of freedom of association and requests the Government to amend the 1992 Finance Act, the Export Processing Zones Authority Ordinance, 1980, and the Export Processing Zones (Control of Employment) Rules, 1982, in order to ensure the right to organize and bargain collectively for workers in accordance with Conventions Nos. 87 and 98. The Committee refers this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.
8. 410. As concerns the specific complaint of the violation of the trade union rights of the Awami Labour Union, the Committee first notes that the Government declared all classes of employment under the Daewoo Corporation for the construction of the Pakistan motorway to be employment covered by the Pakistan Essential Services (Maintenance) Act which, according to the complainant, suppresses their right to collective bargaining and industrial action. In this regard, the Committee recalls the importance which it attaches to the right of representative organizations to negotiate. It also draws the Government's attention to the fact that, in accordance with its constant principles, strikes should not be prohibited in the building industry since prohibitions or major restrictions should only be allowed in essential services in the strict sense of the term (that is, those services whose interruption would endanger the life, personal safety or health of the whole or part of the population). (See, 291st Report, para. 513.) The Committee therefore considers that the Daewoo Motorway Construction Project cannot be considered an essential service and that prohibiting these workers from exercising their right to bargain collectively and to strike is incompatible with the principles of freedom of association.
9. 411. The Committee notes that the Government's second declaration applying the Essential Services (Maintenance) Act to the Daewoo motorway project workers was issued on 28 July 1993 for a six-month period. It would thus appear that this declaration is no longer valid. The Committee therefore trusts that the Essential Services Act no longer applies to the workers at the Daewoo construction project and that they may freely exercise their right to bargain collectively and to take industrial action in accordance with Conventions Nos. 87 and 98.
10. 412. In this respect, the Committee notes that the application for legal registration submitted by the Awami Labour Union on 21 December 1992 has still not been resolved. It notes with concern that this delay was attributable to the Registrar's persistent refusal to register the union despite an instruction to do so by the Punjab Labour Court on 2 March 1993. The Committee must therefore 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.)
11. 413. The complainant further asserts that following the Punjab Labour Court's order to register the Awami Labour Union, the Registrar submitted the matter to the Labour Appellate Tribunal requesting a suspension of the order because registering the union would cause it "irreparable loss" and, at the same time, filed a revision petition against the order. Moreover, the complainant alleges that government authorities had approached the Labour Appellate Tribunal in support of the Registrar and Daewoo.
12. 414. The Committee notes with regret that while the Appellate Tribunal stayed the order on 15 March 1993, no judgement had been rendered with respect to the revision petition against the Labour Court's order for registration, thus effectively denying legal recognition of the Awami Labour Union for over one year. The delay in registering the Awami Labour Union becomes all the more serious given that the Labour Department memorandum of 11 January 1994 recognizes that the union has produced evidence demonstrating that the discrepancies raised concerning registration had been removed and yet the union has still not been registered. As it appears from the Labour Department's own admission that the union has met the legal requirements for registration, the Committee requests the Government to take the necessary steps to ensure that registration is granted to the Awami Labour Union-Daewoo Motorway Construction Project without any further delay and to provide information on the developments in this regard as soon as possible.
13. 415. As concerns the government interference with the carrying out of trade union activities, the Committee must first express its deep concern over the seriousness of the allegations, including complaints of arrests, detention and torture of union members. In this respect, the Committee recalls that detained trade unionists, like all other persons, should enjoy the guarantees enunciated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person. (See, Digest, op. cit., paras. 83 and 86.) Noting the numerous allegations of various acts of torture and ill-treatment committed by the Pakistani security forces, the Committee deplores this violence and urges the Government to establish an independent, impartial and thorough inquiry into the relevant circumstances to determine the facts and to identify and to punish those responsible for the violence and to keep it informed of the findings of the inquiry.
14. 416. As concerns the arrest (according to the complainant) of more than 205 union members since its formation (35 of whom were arrested during a constitutional union meeting, including the General Secretary), the Committee recalls that the arrest and detention of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association. (See, Digest, op. cit., paras. 87 and 88.) Noting further that no charges were initially made against the 35 union members arrested on 27 January 1993, it would appear that these arrests involve restrictions on the exercise of trade union rights. As it appears that these workers were finally charged with illegal assembly, the Committee would recall that the detention and sentencing of workers' representatives in connection with activities related to the protection of the workers' interests endanger the free exercise of trade union rights. It therefore requests the Government to keep it informed of the developments with respect to these workers and to provide copies of any judgements made against them or to indicate if the charges have been dropped.
15. 417. With respect to the dismissal of union members, the Committee notes that according to the complainants 50 union members were dismissed immediately after the formation of the Awami Labour Union and over 395 have been dismissed to date. The Committee further notes that according to the complainants Daewoo summarily rejected the union's demands for reinstatement of the initial 50 workers dismissed even after the union had obtained a restraining order from the NIRC pending the decision on its application for registration. Given the occurrence of these dismissals immediately after the formation of the union, the large number of union members involved and the lack of contradictory evidence, the anti-trade union nature of these dismissals may be assumed. The Committee therefore recalls the principles according to which all workers should be able to form and join organizations of their own choosing in full freedom and no person should be prejudiced in his or her employment by reason of his or her trade union membership or legitimate trade union activities (Digest, op. cit., paras. 222 and 538); it urges the Government to take measures to ensure that they are reinstated in their jobs. It requests the Government to keep it informed in this regard.
16. 418. Finally, as regards the further allegations of anti-union tactics carried out by Daewoo Corporation in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions to usurp the role of the Awami Labour Union, the Committee considers such acts to be contrary to Article 2 of Convention No. 98 (ratified by Pakistan) which provides that workers' and employers' organizations shall enjoy adequate protection against any acts of interference by each other or each other's agents in their establishment, functioning or administration. The Committee therefore requests the Government to investigate these allegations and to take the necessary measures to guarantee the free exercise of the right of association to the workers at the Daewoo motorway construction project and to keep it informed of the developments in this regard.