Informe provisional - Informe núm. 386, Junio 2018

1. 502. The Committee last examined this case at its March 2017 meeting, when it presented an interim report to the Governing Body [see 381st Report, paras 505–515, approved by the Governing Body at its 329th Session].
2. 503. The Government provides its observations in a communication dated 25 April 2018.
3. 504. 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. 505. At its March 2017 meeting, the Committee made the following recommendations [see 381st Report, para. 515]:
   • (a) The Committee requests the Government to indicate whether a subsequent agreement replaced the July 2011 agreement, and if so, to provide further information on it, including the issues covered, and to specify the labour situation of those retrenched workers who did not accept the voluntary separation scheme offered by the company.
   • (b) The Committee expects that the High Court of Sindh will finally conclude on the matter concerning KESC workers’ petitions without delay so that the claims of anti-union discrimination can be effectively examined either by the NIRC or the appropriate judicial body. The Committee also requests the Government to take all necessary measures to enable the concerned workers to have effective access to such means of redress for any alleged prejudice based on trade union membership or activities, and further urges it to promote negotiation between the complainant and the company with a view to solving any pending issues. The Committee requests the Government to inform it of any developments in this regard.
   • (c) In view of the gravity of the matters raised in this case, the Committee urges the Government to provide information on the investigations instituted into the allegations that: (i) violence was used against trade union members during the August 2011 demonstration against the refusal of the company to implement the July 2011 tripartite agreement, injuring nine; and (ii) 30 trade union office bearers were dismissed following this demonstration and/or criminal charges were brought against them; with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It expects that, should it be found that these unionists were dismissed or charged for the exercise of legitimate trade union activities, the Government will take all necessary steps to ensure their reinstatement and the dropping of all pending charges. If reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the union members concerned are paid adequate compensation so as to constitute a sufficiently dissuasive sanction for anti-union discrimination.
   • (d) Recalling that Presidential Ordinance No. IV of 1999, which amended the Anti-Terrorism Act by penalizing with imprisonment the creation of civil commotion, including illegal strikes or slowdowns, had been repealed and is no longer in force, and noting from the complainant’s allegations that charges were brought against trade union officers under the Anti-Terrorism Act, the Committee once again requests the Government to indicate under which provisions of the Anti-Terrorism Act the trade union officers were charged and invites it to ensure that any pending charges are dropped should they relate to the exercise of legitimate strike action.

B. The Government’s reply

1. 506. In its communication dated 25 April 2018, the Government indicates that the July 2011 agreement has not been replaced and is thus still in force, that out of the 4,500 retrenched workers, 467 have not yet accepted the voluntary separation scheme, and that the enterprise has earmarked funds for these employees who can take advantage of them at any time, although the date for the voluntary separation scheme has expired.
2. 507. The Government further states that after the 18th Constitutional Amendment, the operation of the Industrial Relations Act, 2012 (IRA) was suspended and both the management and the employees of the electricity enterprise approached the Sindh High Court to redress the grievances against each other. Since 2014, the IRA was allowed to operate again and cases were therefore lodged to the National Industrial Relations Commission (NIRC), however, as seven out of ten posts in the NIRC were vacant, the cases remained pending. Now that the vacant posts have been filled, cases are being disposed of expeditiously and the Ministry of Overseas Pakistani Human Resource Development (OPHRD) has requested members of the Karachi Bench of the NIRC to take up the cases concerning the enterprise as a priority.
3. 508. The Government further indicates that the NIRC was assigned to probe into the matter of violence by the enterprise against the workers during the August 2011 demonstration but that due to its suspension, the probe could not be undertaken. As regards the 30 trade union office bearers dismissed following the August 2011 demonstration, the Government states that they are still dismissed, their cases are under trial in the District Court of Karachi, where they are being vigorously followed, and the Ministry of OPHRD is pursuing the enterprise to withdraw these cases and compensate the workers under the voluntary separation scheme. The Government also explains that the August 2011 protest turned violent – workers ransacked the enterprise’s sensitive installations and properties and when the police tried to stop them, it resulted in clashes between the protestors and the law enforcement agencies in which three police officers were severely injured. Several complaints were therefore registered by the police against the workers under different charges, including section 7 of the Anti-Terrorism Act, but the charges based on the Anti-Terrorism Act were later dropped by the relevant courts and no other case has been registered under anti-terrorist laws.

C. The Committee’s conclusions

1. 509. The Committee recalls that the complaint in this case was lodged in 2011 and concerned allegations that the management of an electricity enterprise in Karachi refused to implement a tripartite agreement to which it was a party, as well as allegations of violence against protesting workers, dismissals and the filing of criminal charges against trade union office bearers.
2. 510. With regard to the alleged refusal by the management to implement a tripartite agreement to which it was a party, the Committee recalls that the agreement in question was signed in July 2011 and provided for the reassignment of the 4,500 enterprise workers declared redundant, as well as recovery of unpaid wages. While noting the Government’s indication that the agreement is still in force and that out of the 4,500 retrenched workers, 467 have not yet accepted the voluntary separation scheme even though funds have been earmarked for this purpose by the enterprise, the Committee understands that, although being in force, the July 2011 agreement which provides for reassignment of the retrenched workers does not appear to have been implemented, as the majority of the workers accepted the voluntary separation scheme offered by the enterprise and several hundreds of them refused but have not been reassigned. The Committee observes from the information provided that no substantial progress has been made in this regard since its last examination of the case and therefore requests the Government to take the necessary measures to ensure that the July 2011 tripartite agreement is implemented, in particular that workers who refused the voluntary separation scheme are reassigned without delay or, if reassignment is not possible for objective and compelling reasons, the concerned workers are paid adequate compensation. The Committee requests the Government to inform it of any developments in this regard.
3. 511. The Committee further notes the Government’s indication that cases filed to the National Industrial Relations Commission (NIRC) by the management and the employees of the enterprise were pending for some time due to the suspension of the NIRC, but that since the resumption of its work, cases are being dealt with expeditiously and the Karachi Bench of the NIRC was asked by the Government to take up the cases relating to the enterprise as a priority. While taking due note of the efforts made by the Government to expedite the examination of the pending matters, the Committee regrets that, despite the time that has elapsed since the submission of the claims by members of the Karachi Electric Supply Corporation Labour Union (KESC), these claims are still pending and workers thus continue to lack access to effective means of redress for alleged prejudice based on trade union membership or activities. Recalling once again that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1142], the Committee expects the NIRC to examine the pending claims of anti-union discrimination without delay so that, where applicable, adequate remedy can be ordered and urges the Government once again to promote negotiation between the complainant and the enterprise with a view to solving any pending issues. The Committee requests the Government to inform it of any developments in this regard.
4. 512. In relation to the allegations that violence was used against trade union members during the August 2011 demonstration against the refusal of the enterprise to implement the July 2011 agreement, injuring nine, the Committee notes the Government’s indication that the NIRC was supposed to probe into the alleged violence of the enterprise against the workers but this did not occur due to the suspension of its operation. As to the allegations that 30 trade union office bearers were dismissed following this demonstration and/or criminal charges were brought against them, the Committee understands from the information provided by the Government that the 30 workers have not yet been reinstated, that the cases filed against them are under trial in the District Court of Karachi but that the Ministry of the OPHRD is engaged with the enterprise to persuade it to withdraw the pending cases and that the criminal charges filed under the Anti-Terrorism Act have been dropped by the relevant courts. While taking due note of these efforts by the Government, the Committee must regret that more than six years after the alleged incidents, an independent investigation has still not taken place into the allegations of violence, dismissals and criminal charges filed against trade unionists following the August 2011 demonstration. The Committee, therefore, urges the Government to take the necessary measures to institute an independent investigation into these allegations, with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing repetition of such acts. The Committee expects such investigation to be undertaken without delay and further expects that, should it be found that these unionists were dismissed or charged for the exercise of legitimate trade union activities, the Government will take all necessary steps to ensure their reinstatement and the dropping of all pending charges. If reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the union members concerned are paid adequate compensation so as to constitute a sufficiently dissuasive sanction for anti-union discrimination.