Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 323, Novembre 2000

1. 408. The Committee examined the substance of this case at its November 1999 meeting when it presented an interim report to the Governing Body (see 318th Report, paras. 324-352, approved by the Governing Body at its 276th Session (November 1999)).
2. 409. The APFTU provided additional information in communications dated 4 January and 5 May 2000. The Government supplied its observations in communications dated 16 March and 25 May 2000.
3. 410. 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. 411. During its previous examination of the case, the Committee had noted that the allegations in this case concerned the denial of trade union and collective bargaining rights for workers of the Pakistan Water and Power Development Authority (WAPDA) as well as for workers of the Karachi Electric Supply Corporation (KESC) pursuant to the issuance of Presidential Ordinances which excluded the application of the Industrial Relations Ordinance, 1969, to these two public utilities.
2. 412. More specifically, with regard to the situation of WAPDA workers, the Committee had noted that Presidential Ordinance No. XX dated 22 December 1998 had suspended the trade union and collective bargaining rights of more than 130,000 WAPDA workers. The Committee had also noted the Government's reply that the promulgation of this Ordinance was an exceptional measure which was essential for the welfare of the community and the health of the country's economy. According to the Government, the massive theft of electricity, rampant corruption and inefficiency in WAPDA, an organization which had initially been established for the development of water and power resources of the country, had seriously affected the viability of the organization. The Government had further indicated that although the management of WAPDA had tried various measures to restore the financial viability of the organization and to reintroduce a culture of efficiency, accountability and discipline, it was helpless in taking disciplinary action against the delinquents largely due to interference and pressure by the union and corrupt elements therein. In order to avert a complete collapse of WAPDA, which would have caused great human suffering and economic hardship, the Government was constrained to seek the assistance of the armed forces in restoring the financial health of the organization through checking pilferage/power theft.
3. 413. While noting the Government's statement that a number of office-bearers of the Pakistan WAPDA Hydro Electric Central Labour Union were either directly or indirectly involved in corrupt activities in WAPDA, the Committee was of the view that to deprive many thousands of workers of their trade union organization because illegal activities had been carried out by some leaders or members constituted a clear violation of the principles of freedom of association. The Committee had considered that if it was found that certain members of the trade union had committed excesses going beyond the limits of normal trade union activity, they could have been prosecuted under specific legal provisions and in accordance with ordinary judicial procedure, without involving the suspension and subsequent dissolution of an entire trade union movement.
4. 414. Moreover, the Committee had noted that the management of WAPDA had issued an order in February 1999 that trade union dues would no longer be deducted from the wages of workers pursuant to Presidential Ordinance No. XX. The Committee had considered that the suspension of the practice of deducting trade union dues coupled with the suspension of trade union activities risk jeopardizing the very existence of the APFTU's affiliate, the WAPDA Hydro Electric Central Labour Union. Finally, the Committee had noted that the Deputy Registrar of the National Industrial Relations Commission cancelled the registration of the union in March 1999 and had emphasized that the cancellation of registration of an organization by the registrar (or deputy registrar) of trade unions was tantamount to the suspension or dissolution of that organization by administrative authority which constituted a clear violation of Article 4 of Convention No. 87. In this respect, the Committee had noted that the WAPDA Hydro Electric Central Labour Union had filed an appeal to the Lahore High Court against the decision of the Deputy Registrar.
5. 415. For all the abovementioned reasons, the Committee had strongly deplored the promulgation of Presidential Ordinance No. XX of 1998 which suspended the trade union rights of WAPDA workers and prevented the WAPDA Hydro Electric Central Labour Union from carrying out its normal trade union activities including receiving its trade union dues. In this respect, the Committee had noted that although Presidential Ordinance No. XX had elapsed on 22 April 1999, it was repromulgated as Ordinance No. V, 1999, with effect from 24 May 1999. The Committee had requested the Government to confirm that Ordinance No. V had elapsed and if this was not the case, to repeal it immediately.
6. 416. Finally, the Committee had noted with serious concern the allegations of the Federation of Oil, Gas, Steel and Electricity Workers (FOGSEW-Pakistan) in a communication dated 8 June 1999 to the effect that the Government had excluded the Karachi Electric Supply Corporation (KESC) from the purview of the Industrial Relations Ordinance, 1969, through two Presidential Ordinances issued on 27 May 1999 with the result that the FOGSEW's affiliate, the KESC Democratic Mazdoor Union, had been banned by the new management of KESC with effect from 31 May 1999. Noting that the Government had not replied to these serious allegations, the Committee had urged the Government to provide its observations thereon without delay.
7. 417. At its November 1999 session, in light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee deplores that the Government violated its obligations arising from Conventions Nos. 87 and 98.
   • (b) Noting that the Pakistan WAPDA Hydro Electric Central Labour Union has filed an appeal to the Lahore High Court against the decision of the Deputy Registrar to cancel its registration, the Committee requests the Government to keep it informed of the outcome of the decision handed down by the Lahore High Court.
   • (c) Deploring the promulgation of Presidential Ordinance No. XX of 1998 which suspended the trade union rights of WAPDA workers and prevented the WAPDA Hydro Electric Central Labour Union from carrying out its normal trade union activities, the Committee urges the Government to refrain in the future from having recourse to measures of suspension or dissolution through administrative channels which constitute serious infringements of the principles of freedom of association.
   • (d) The Committee requests the Government to confirm that Ordinance No. V, 1999, which repromulgated Ordinance No. XX of 1998, elapsed on 24 September 1999. If this is not the case, the Committee urges the Government to repeal Ordinance No. V, 1999, immediately, with a view to re-establishing the registration of the Pakistan WAPDA Hydro Electric Central Labour Union; it also requests the Government to ensure that the practice of deducting trade union dues is resumed without delay. It asks the Government to keep it informed of measures taken to give effect to its recommendations.
   • (e) The Committee urges the Government to reply without delay to the allegations of the Federation of Oil, Gas, Steel and Electricity Workers (FOGSEW) contained in a communication dated 8 June 1999.
   • (f) The Committee deplores the fact that certain WAPDA and KESC union officials were forcibly retired.

B. The complainants' additional information

1. 418. In a communication dated 4 January 2000, the APFTU contends that Ordinance No. V, 1999, which places restrictions on the fundamental trade union rights of 130,000 WAPDA workers was repromulgated. Although this Ordinance was supposed to elapse on 23 December 1999, it is still in force due to the suspension of some articles of the Constitution of Pakistan, the enforcement of a new provisional Constitution as well as the absence of a parliament.
2. 419. In a communication dated 5 May 2000, the APFTU indicates that the Government has decided to restore the fundamental trade union rights of 140,000 WAPDA workers and that the ban on trade unions has been lifted.

C. The Government's reply

1. 420. In a communication dated 16 March 2000, the Government states that it has already provided detailed information on the existence of extremely grave circumstances which led to the invocation of article 245 of the Constitution. The decision was taken as an exceptional measure, essential for the welfare of the community, organization and health of the country's economy. The Government points out that it has time and again reiterated its commitment to fully respect the fundamental workers' right of freedom of association. Despite the existing circumstances, the Government has maintained regular contacts with the leadership of the suspended unions. Moreover, it is committed to restoring trade union rights in WAPDA and KESC as soon as the situation normalizes and the two enterprises once again become viable and productive.
2. 421. In this context, the concerned authorities have chalked out a phased programme for restructuring of the WAPDA and KESC and for the eventual restoration of the trade unions concerned. Since the restructuring of the two organizations is near completion, the following programme for the restoration of trade unions is being considered by the Government. First of all the ban on trade union activities in WAPDA and KESC would continue up to 31 October 2000. However, in the light of the recommendations by the Committee on Freedom of Association, the following time frame will be observed: (i) registration of voters will be undertaken with effect from 1 July 2000. This will be completed by 31 August 2000; (ii) arrangements to hold a referendum to determine the collective bargaining agent will be completed by 31 October 2000; (iii) union activities will start thereafter. In the interim period, WAPDA and KESC management will maintain regular consultations with labour at various tiers to resolve the difficulties of workers and address their concerns.
3. 422. In a communication dated 25 May 2000, the Government states that the Chief Executive of Pakistan has lifted the ban on trade union activities in WAPDA, which earlier had been imposed as temporary measures.

D. The Committee's conclusions

1. 423. The Committee wishes to recall that the allegations in this case concern the denial of trade union and collective bargaining rights for workers of the Pakistan Water and Power Development Authority (WAPDA) as well as for workers of the Karachi Electric Supply Corporation (KESC) pursuant to the issuance of presidential ordinances which excluded the application of the Industrial Relations Ordinance, 1969, to these two public utilities.
2. 424. As regards the current situation of WAPDA workers, the Committee notes from the new additional information provided by the All Pakistan Federation of Trade Unions (APFTU) as well as the Government that the ban on trade union activities in WAPDA has now been lifted by the Chief Executive of Pakistan. The Committee takes due note of this information.
3. 425. Furthermore, during its previous examination of this case, the Committee had noted that the management of WAPDA had issued an order in February 1999 that trade union dues would no longer be deducted from the wages of workers (see 318th Report, para. 348). The Committee had considered that the suspension of the practice of deducting trade union dues coupled with the suspension of trade union activities risked jeopardizing the very existence of the APFTU's affiliate, the WAPDA Hydro Electric Central Labour Union and had therefore requested the Government to ensure that the practice of deducting trade union dues was resumed without delay. Noting that the Government has not provided any information on measures taken to this effect, the Committee once again requests the Government to ensure that the practice of deducting trade union dues is resumed without delay in WAPDA; it requests it to keep it informed of developments in this respect.
4. 426. As regards the legal organizational structure of the Pakistan WAPDA Hydro Electric Central Labour Union, the Committee had noted during its previous examination of this case that the Deputy Registrar of the National Industrial Relations Commission had cancelled the registration of the union in March 1999. In this regard, the Committee had emphasized that the cancellation of registration of an organization by the registrar (or deputy registrar) of trade unions was tantamount to the suspension or dissolution of that organization by administrative authority which constituted a clear violation of Article 4 of Convention No. 87 and that cancellation of a trade union's registration should only be possible through judicial channels (see 318th Report, para. 348). In this respect, the Committee had noted that the WAPDA Hydro Electric Central Labour Union filed an appeal to the Lahore High Court against the decision of the Deputy Registrar, and had requested the Government to keep it informed of the outcome of the decision handed down by the Lahore High Court. Noting that the Government does not provide any information in this regard, the Committee once again requests the Government to keep it informed of the outcome of the appeal filed by the union to the Lahore High Court.
5. 427. Moreover, the Committee would recall that during its previous examination of this case, it had noted with serious concern the allegations of the Federation of Oil, Gas, Steel and Electricity Workers (FOGSEW-PAKISTAN) in a communication dated 8 June 1999 to the effect that the Government had excluded the Karachi Electric Supply Corporation (KESC) from the purview of the Industrial Relations Ordinance, 1969, through two Presidential Ordinances issued on 27 May 1999 with the result that the FOGSEW's affiliate, the KESC Democratic Mazdoor Union, had been banned by the new management of KESC with effect from 31 May 1999. Noting that the Government had not replied to these serious allegations, the Committee had urged the Government to provide its observations thereon without delay (see 318th Report, para. 350). The Committee now notes with serious concern that the Government, in its recent reply, broadly justifies its decision to suspend trade union activities in KESC for more or less the same reasons that led it to take a similar decision in the case of WAPDA, namely that the decision is an exceptional measure which is essential for the welfare of the community and the health of the country's economy. The Government affirms that it is nevertheless committed to restoring trade union rights in KESC as soon as the enterprise becomes viable and productive again. In this regard, the Committee first reminds the Government once again that the Committee of Experts on the Application of Conventions and Recommendations has emphasized that the freedom of association Conventions do not contain any provision permitting derogation from the obligations arising under the Convention, or any suspension of their application, based on a plea that an emergency exists (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 186). Furthermore, the Committee considers that the viability or productivity of an enterprise must not be a precondition for the guarantee of the fundamental rights of freedom of association. Moreover, if a number of office-bearers of the KESC Democratic Mazdoor Union were allegedly directly or indirectly involved in corrupt activities in KESC resulting in the massive theft of electricity (as in the case of the Pakistan WAPDA Hydro Electric Central Labour Union according to the Government), the Committee is of the view that to deprive many thousands of workers of their trade union organization because illegal activities have been carried out by some leaders or members constitutes a clear violation of the principles of freedom of association (see Digest, op. cit., para. 667). The Committee considers that if it was found that certain members of the trade union had committed excesses going beyond the limits of normal trade union activity, they could have been prosecuted under specific legal provisions and in accordance with ordinary judicial procedure, without involving the suspension and subsequent dissolution of an entire trade union movement (see report of the Commission of Inquiry on the observance by Poland of Conventions Nos. 87 and 98, Official Bulletin (Vol. LXVII), 1984, para. 492). Noting however that, according to the Government, the ban on trade union activities of the KESC would continue up to 31 October 2000, the Committee requests the Government to confirm that the ban on KESC has indeed been lifted and that the workers' trade union rights have been restored. It further urges the Government to restore the collective bargaining rights of KESC workers without delay and requests the Government to keep it informed of developments in this regard.
6. 428. Lastly, the Committee notes the Government's statement that, in the context of restoring trade union rights in WAPDA and KESC, the Government plans to make arrangements to hold a referendum in both establishments in order to determine the collective bargaining agent (CBA) in each organization by 31 October 2000. The Committee considers nevertheless that if the authorities have the power to hold polls for determining the majority union which is to represent the workers for the purposes of collective bargaining, such polls should always be held in cases where there are doubts as to which union the workers wish to represent them (see Digest, op. cit., para. 826). In the case at hand however and in light of the information at its disposal, it is the Committee's view that there is no credible evidence to support the Government's position that such doubts exist and that new elections should be held to determine the CBA unions in WAPDA and KESC. In effect, the Committee notes from the information previously provided by the complainants - which the Government did not contest - that the Pakistan WAPDA Hydro Electric Central Labour Union was the largest industry-wide trade union in the country, was representing WAPDA workers for the past 50 years and was again recently declared to be the collective bargaining agent for WAPDA workers through a referendum held at the national level on 29 December 1997 (see 318th Report, para. 328). Similarly, the KESC Democratic Mazdoor Union was duly elected as CBA in the establishment as a result of a referendum held on 23 February 1999 (see 318th Report, para. 332). The Committee therefore believes that it is solely the Government's actions that led to the cancellation of the rights of the two abovementioned unions as CBAs. As such, the Committee is of the view that these rights should be restored to the two unions concerned without delay and that the Government should take the appropriate measures to this end. It requests the Government to keep it informed of developments in this regard.
7. 429. Finally, as concerns the last point in the Committee's previous recommendations, the Committee requests the Government to keep it informed of any developments in respect of the WAPDA and KESC union officials who were forcibly retired.