Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the adoption of the Industrial Relations Ordinance (IRO) of 2002, which has repealed the Industrial Relations Ordinance of 1969.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing. 1. Managerial and supervisory staff. The Committee notes with interest that the definition of "worker" has been amended by repealing the exclusion of persons employed in a supervisory capacity whose wages exceed 800 rupees per month. The Committee notes however that the definition of "worker" provided for in section 2(xxx) of the IRO continues to exclude "persons who are employed mainly in a managerial or administrative capacity" and that section 63(2) provides that a person promoted or appointed to a managerial position ceases to be a member of a trade union. The Committee recalls in this respect that restrictions may be placed on the right to organize of managerial staff, provided that such workers have the right to form their own organizations to defend their interests and that the category of executive and managerial staff is not so broadly defined as to weaken the organizations of other workers by depriving them of a substantial proportion of their actual or potential membership (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 86-88). The Committee requests the Government to amend its legislation so as to ensure that managerial staff may form and join organizations to defend their own social and occupational interests.

2. Other exclusions. The Committee further notes with regret that, according to section 1(4) of the IRO, workers employed in the following establishments or industries are excluded from its scope: installations or services exclusively connected with the armed forces of Pakistan including Ministry of Defence lines of the railways; Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint; administration of the State other than those employed as workmen by the railways, post, telegraph and telephone departments; establishment or institution maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons excluding those run on a commercial basis; institution established for payment of employees’ old-age pensions or for workers’ welfare; and members of the watch and ward, security or fire service staff of an oil refinery or of an establishment engaged on the production, transmission or distribution of natural gas or liquefied petroleum products or of a seaport or an airport.

The Committee also understands from a previous comment made by the All Pakistan Federation of Trade Unions (APFTU) that the Government has not lifted the ban on trade union activities at the Karachi Electric Supply Company. The Committee notes in this respect the Government’s statement to the effect that the KESC management is taking all possible measures to improve the working environment along with the welfare of workers. The Committee would like to point out that the issue in question is the right of the KESC workers to establish their organizations freely.

Furthermore, the Committee notes from the conclusions of the Committee on Freedom of Association in Case No. 2242 that the Chief Executive’s Order No. 6 has abolished the trade union rights of the workers in Pakistan International Airlines.

The Committee recalls that, with the exception of the members of police and the armed forces, the right to organize should be fully guaranteed to all workers. It further considers that civilians working in military installations or in the service of the army or police should enjoy the rights provided for in the Convention. The Committee therefore requests the Government to amend its legislation so as to ensure the right to organize of all workers, with the only possible exception being the members of the police and armed forces.

The Committee further notes with regret that the new IRO does not address the previous concerns of the Committee concerning the right to organize for agricultural workers. In its report, the Government states that the IRO 2002 does not cover agriculture and that "the rights and welfare of agricultural workers has remained without any legal support". It further states that the necessary legislation would be developed within the next five years to ensure the rights and welfare of agricultural workers. The Committee trusts that the necessary measures will be taken in order to ensure the right to organize for agricultural workers in the very near future.

Finally, the Committee once again requests the Government to indicate in its next report the progress made in framing labour legislation to ensure the rights under the Convention to export processing zones workers and to transmit a copy of any relevant draft texts or adopted legislation.

Article 3. (a). Right to elect representatives freely. In its previous comments, the Committee requested the Government to amend section 27-B of the Banking Companies Ordinance of 1962, which restricted the possibility of becoming an officer of a bank union only to employees of the bank in question, under penalty of up to three years’ imprisonment. The Committee notes the Government’s statement to the effect that this section does not restrict the right of workers to elect their representative among members of the union. The Committee once again recalls that provisions requiring officers of trade unions to be chosen from among union members infringes the right of workers’ organizations to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. Noting further the seriousness of the penalty for violation of this provision, the Committee urges the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been previously employed in the banking company.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that the federal or provincial Government may prohibit a strike related to an industrial dispute in respect of any public utility services at any time before or after its commencement and refer the dispute to a board of arbitrators for compulsory arbitration (section 32 of the IRO). A strike carried out in contravention of an order made under this section is deemed illegal by virtue of section 38(1)(c). The Committee notes that Schedule I setting out the list of public utility services includes services which cannot be considered essential in the strict sense of the term - oil production, postal services, railways, airways and ports. The schedule also mentions watch and ward staff and security services maintained in any establishment.

The Committee further notes the Government’s statement that the federal or provincial Government is empowered to call off a strike before or after its commencement in establishments to which the Essential Services Act of 1952 is applicable. The Government adds that this Act is applied to the establishments where stoppage of work is prejudicial to the national interests or causing serious hardship to the community. In this respect, the Committee recalls that it has been requesting the Government for some time now to amend the Essential Services Act, which included services beyond those which can be considered essential in the strict sense of the term. The Committee considers that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). The Committee therefore requests the Government to amend the legislation so as to ensure that workers employed in oil production, postal services, railways, airways and ports may have recourse to strike action and so that compulsory arbitration may only be applied in these cases at the request of both parties. Recalling again the heavy penal sanctions linked to violation of the Essential Services Act, it further requests the Government to amend this Act so as to ensure that its scope is limited to essential services in the strict sense of the term. The Committee also requests the Government to specify the categories of workers employed in the "watch and ward staff and security services maintained in any establishment".

Rather than imposing a prohibition on strikes, which should be limited to essential services in the strict sense of the term, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers which suffer the economic effects of collective disputes, the authorities could however establish a system of minimum services of public utilities. A minimum service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear by the strike action. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey, op. cit., paragraphs 160 and 161).

The Committee further notes that section 39(7) provides the following sanctions for contravening a labour court’s order to call off the strike: dismissal of the striking workers; cancellation of the registration of a trade union; debarring of trade union officers from holding office in that or any other trade union for the unexpired term of their offices and for the term immediately following. The Committee recalls in this respect that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, existence of heavy and disproportionate sanctions for strike action may create more problems than they resolve. Since the application of disproportionate sanctions does not favour the development of harmonious and stable industrial relations, the sanctions should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177 and 178). More specifically, the Committee considers that the cancellation of trade union registration, in view of the serious and far-reaching consequences which dissolution of a union involves for the representation of workers’ interests, would be disproportionate even if the prohibitions in question were in conformity with the principles of freedom of association. Consequently, the Committee urges the Government to amend section 39(7) of the IRO so as to ensure that sanctions for strike action may only be imposed where the prohibition of the strike is in conformity with the Convention and that, even in those cases, the sanctions imposed are not disproportionate to the seriousness of the violation.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring its legislation into conformity with the Convention in respect of all of the abovementioned points. Furthermore, the Committee once again requests the Government to indicate whether Presidential Ordinance No. IV of 1999, which amends the Anti-Terrorism Act by penalizing the creation of civil commotion, including illegal strikes or go-slows, with up to seven years’ imprisonment, is still in force.

A request on certain other points is being addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.