Observación (CEACR) - Adopción: 1992, Publicación: 79ª reunión CIT (1992)

The Committee notes the Government's report for the period 30 June 1990 and the discussion which took place in the Conference Committee in 1991. It also notes the conclusions reached by the Committee on Freedom of Association in Case No. 1534 (278th Report, paragraphs 451 to 472, and 281st Report, paragraphs 160 to 173, approved in May-June 1991 and February 1992, respectively) and the Government's reply to the comments previously made by the Pakistan National Federation of Trade Unions (PNFTU), as well as the comments made by the All Union Pakistan Trade Union Council dated 25 June 1991 and the Government's observation thereon supplied in letters dated 5 October 1991 and 29 January 1992.

The Committee's previous observations referred to inconsistencies between the national legislation and various Articles of the Convention on the following points:

- ban on trade union membership and activities for employees of the Pakistan International Airlines Corporation (PIAC) (section 10 of the PIAC Act, 1956);

- denial of the rights guaranteed by the Convention for workers in export processing zones (section 25 of the Export Processing Zones Authority Ordinance, 1980, and section 4 of the Export Processing Zone (Control of Employment) Rules, 1982);

- exclusion of public servants of grade 16 and above from the scope of the Industrial Relations Ordinance, 1969 (section 2(viii)(special provision));

- restrictions on recourse to strikes (sections 32(2) and 33(1) of the Ordinance);

- prohibition on minority unions from representing their members in relation to individual grievances;

- comments from the PNFTU alleging the promotion of union activists as an anti-union tactic.

The Committee also notes that, according to the All Union Pakistan Trade Union Council, employees in private and public sector hospitals are denied the right to form trade unions.

1. The Committee notes with interest that section 10 of the PIAC Act has been amended to repeal the ban on trade union membership and activities by airlines employees. It notes, however, from the Conference discussions, that a similar ban applies to employees of the Pakistan Telecommunications Corporation and that, according to the Government representative, draft legislation restoring trade union rights there was to have been passed by the National Assembly at the end of 1991. The Committee accordingly requests the Government to confirm that the draft was passed and to supply a copy of the amending legislation.

2. The Government states that export processing zones were set up to boost industrialisation and to enable workers and employers to work together in an environment of industrial peace, and since this has been largely achieved, the 1980 Act has not been amended; however, it gives the assurance that all unreasonable restrictions on the right to organise will be removed. The Committee welcomes this development. It nevertheless reminds the Government that these restrictions are not consistent with the requirements of the Convention. It asks the Government to transmit any legislation amending the Act and Rules in question.

3. As for the granting of trade union rights to senior civil servants, the Government states that since they are engaged in the administration of the State they are not covered by the Industrial Relations Ordinance; there are, however, 25 associations of civil servants which, it claims, can act in a wide range of ways for the defence of their members' interests. The Committee notes from section 28 of the Sindh Government Servants (Conduct) Rules, amended in 1990 and mentioned in a previous direct request, that associations of public servants are subject to serious restrictions incompatible with Articles 2 and 3 of the Convention: membership confined to civil servants serving in one functional unit (see the 1983 General Survey on Freedom of Association and Collective Bargaining, paragraph 126); requirement that all office-bearers be members of that association (op. cit., paragraph 158); bans on engaging in political activities, limiting activities to matters of personal interest of their members, ban on involvement in the individual cases of their members, ban on issuing periodical publications or publishing representations on behalf of their members without government sanction and the requirement of prior approval of the approving authority (the employer) of their by-laws (see, respectively, op. cit., paragraphs 195, 68, 152).

Noting that the Government has not replied to its query whether similar restrictions exist in other provinces, the Committee cannot but repeat that senior and provincial civil servants - like all other workers - should have the right to form and join organisations of their own choosing, organisations which should be free to act in the defence of the occupational interests of their members. If it is felt that joint membership with other types of government servants is undesirable due to the special characteristics or functions of a particular group or to avoid conflicts of interest, provisions so forbidding joint membership should ensure that such workers have the right to form their own organisations and that the categories of concerned staff are not so broadly defined that the organisations of other workers in the government services are weakened by depriving them of a substantial proportion of potential membership (op. cit., paragraph 131). The Committee accordingly asks the Government to inform it of measures taken or envisaged to bring the legislation into conformity with the Convention on this point.

4. Regarding the schedule of eight public utility services in which strikes are banned, the Government is of the view that if any such service is disrupted this is likely to endanger the health and safety of the society or part of the population; it adds that the list is already a bare minimum and if any service was deleted thus allowing strikes or lockouts, this would certainly affect the interest of the community as a whole. The Committee agrees that most of the services listed in the schedule accord with its definition of essential services where strikes may be restricted or even prohibited, namely services where an interruption would endanger the life, personal safety or health of the whole or part of the population (op. cit., paragraph 214); it must repeat, however, that it has consistently considered that oil production and distribution, the post and telegraph service, railways and airways (except for air traffic controllers), and ports are not within this definition and accordingly again asks the Government to amend the schedule.

5. As regards the rights of representation of minority unions, the Government repeats that if a minority union is permitted to dialogue with the employers in the presence of the elected workers' representatives (the bargaining agent) this would undermine the very existence of the elected representatives; it adds that workers themselves have been agitating against any such practice publicly and during the tripartite discussions on the issue, feeling that workers' rights are infringed when employers can establish contact with minority unelected unions. The Committee would emphasise that the only rights of minority unions that it is advocating are those of representing their own members in individual grievances, not an undermining of the bargaining parties; by virtue of the right of workers to join organisations of their own choosing, as set forth in Article 2 of the Convention, the members of unions should have the right as regards their individual claims, even if their union is a minority one, to be represented by their own organisation (op. cit., paragraph 141). The Committee therefore again asks the Government to consider amending its legislation so as to enable minority unions to represent their members in these specific circumstances.

6. The Committee notes that the Committee on Freedom of Association, in Case No. 1534, examined allegations from the PNFTU and other union organisations identical to the comments made by the PNFTU in the context of the present Convention, namely that a number of foreign-owned companies in the bank and finance sector were giving false promotions to their employees so as to remove them from the category of "workman" in section 2 of the Industrial Relations Ordinance and place them in the "employer" category, thus denying their right to belong to the same union as workers. The Committee on Freedom of Association found that these staff movements were clearly designed to undermine the membership of workers' unions, some of which had been severely affected in practice and called on the Government to take measures to strengthen the application of the protective provisions in the Ordinance so as to prevent employers from weakening workers' unions through artificial promotions. The present Committee notes the Government's explanations that section 15(i) provides protection against anti-union acts and that, if these were in effect false promotions since the employees received higher wages but not the corresponding change of task to a supervisory role, the employees could use the unfair labour practice provisions of section 22(A)(8)(g) and eventually go to the labour courts for redress. Noting that the Government has not yet supplied the statistics requested in its previous observation on the "employers'" organisations which might be formed by the promoted workers, the Committee considers that the Government should strengthen the Ordinance as suggested above, and asks it to inform it of any measures taken or envisaged in this connection.

7. Regarding the denial of the right to form trade unions and to strike of employees in private and public sector hospitals, the Committee notes the Government's statement that it is conscious of the need of constant care and service to the sick, injured and physically handicapped population so that it does not consider it appropriate to allow the members of the medical profession to form trade unions and to go on strike though these rights are available to other workers under the Industrial Relations Ordinance, 1969. The Committee, while accepting that private and public sector hospitals fall within the category of essential services where the right to strike can be denied, asks the Government to restore to these employees the right to form trade unions and to negotiate collectively their terms and conditions of employment.

In view of the fact that the Committee has been commenting on many of these points for some considerable time, it trusts that the Government will make every effort to take the measures to bring its legislation into full conformity with the Convention as soon as possible.