Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 364, Juin 2012

1. 772. The complaint is contained in a communication from the Bank of Punjab Employees Union of Pakistan dated 25 May 2011.
2. 773. The Government sent its observations in a communication dated 12 March 2012.
3. 774. 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. The complainant’s allegations

1. 775. In its communication dated 25 May 2011, the complainant indicates that on 3 April 2005, the employees of the Bank of Punjab formed the Bank of Punjab Employees Union of Pakistan. The Bank of Punjab is a scheduled bank at the national level owned by the Provincial Government of Punjab. It has around 4,000 employees and 2,500 of them were considered workmen with the right to form unions under the then Industrial Relations Ordinance (IRO), 2002.
2. 776. An application for registration of the union was filed with the National Industrial Relations Commission (NIRC) on 21 April 2005 and the management was informed of this application through registered post on 20 April 2005. On receipt of the above application, the Chairperson of the NIRC asked the President of the Bank of Punjab to present a list of employees of the bank. In compliance of the order of the Chairperson, an officer of the bank appeared before the NIRC on 4 May 2005 and confirmed that the members of the union were regular employees of the bank.
3. 777. In an interim order, the NIRC directed the management of the Bank of Punjab not to transfer, discharge, dismiss or punish any officer of the union during pendency of the application for registration as provided under section 10 of the then IRO, 2002 (the complainant attached the decision to the complaint). However, in utter violation of the orders of the NIRC, the management of the bank transferred ten employees to different parts of the country and the services of five office bearers of the union including the President, Vice-President, General Secretary and Deputy General Secretary were terminated on 3 May 2005.
4. 778. The union approached the NIRC against the transfer and termination orders and the NIRC suspended the above decisions taken by the bank (Cases Nos 4(2)/05 and 4(3)/05 of 16 May 2005, attached to the complaint). The management filed a writ petition against the orders of the NIRC before the High Court in May 2005. According to the complainant, the management’s delay tactics unduly prolonged the litigation before the High Court.
5. 779. In 2007, two years later, the High Court rendered its decision and dismissed the application filed by the bank (decision W.P. No. 12257-2005, attached to the complaint). The bank thereafter filed an inter-court appeal before the Division Bench of the High Court. The Division Bench rejected the review petition filed by the bank on 26 January 2009 after a lapse of another two years and directed the case to the NIRC for remedial action (decision I.C.A. 60/2007, attached to the complaint). On 9 September 2009, the NIRC issued a Show Cause Notice to the Punjab Bank, as to why they should not be proceeded against for having committed contempt of Court under Section 27 of Industrial Relations Act (IRA), 2008, as well as unfair labour practices for violation of Regulation 32(1) of NIRC (P&F) Regulations, 1973 read with section 10 and section 17(d) of IRA, 2008 (NIRC Case No. 3(05)/2005, attached to the complaint). The management again filed a writ petition before the High Court requesting a stay order to pre-empt any action by the NIRC.
6. 780. According to the complainant, the Bank of Punjab and the Government of Punjab have been creating all sorts of hurdles for the past six years and are prolonging proceedings to deprive the workers of their legitimate right of association, which is a grave violation of the national laws and of Convention No. 87, ratified by Pakistan. The office bearers of the Union and their family members are undergoing untold suffering since 2005.

B. The Government’s reply

1. 781. In a communication dated 12 March 2012, the Government indicates that the case was referred to the Registrar of the NIRC for its registration as an industry-wide trade union during 2005. The Chairperson of the Commission issued a stay order dated 4 May 2005 not to terminate or transfer the members of the union. The management of the Punjab Bank, however, terminated the services of Ch. Muhammad Farooq and other members of the union and challenged the matter of registration of the union in the Lahore High Court. The High Court remanded the case to the NIRC after two years.
2. 782. The Government adds that the NIRC issued a Show Cause Notice to the Punjab Bank but again the case was appealed before the High Court which directed the NIRC, on 27 January 2012, to transfer the record of the case to the concerned provinces. The union on the other hand went to Inter-Court Appeal and the appeal is pending adjudication before the High Court in Islamabad. As the matter is before the court, the petitioner union has been advised to pursue it in the court. The Government adds that a final report may be sent when the case is decided.

C. The Committee’s conclusions

1. 783. The Committee recalls that this case concerns allegations that the management of the Bank of Punjab has transferred and dismissed trade union officers and members and multiplied legal actions in order to block the registration of the Bank of Punjab Employees Union of Pakistan.
2. 784. The Committee notes that the Government and the complainant appear to concur on the following facts: (1)the Bank of Punjab Employees Union of Pakistan filed an application for registration with the NIRC on 21 April 2005; (2) in an interim order, the NIRC directed the management of the bank not to transfer, discharge, dismiss or punish any officer of the union during the pendency of the application for registration; (3) the management of the bank transferred ten employees to different parts of the country and the services of five office bearers of the union, including the President, Vice-President, General Secretary and Deputy General Secretary were terminated on 3 May 2005; (4) the Union filed a complaint before the NIRC against the transfer and terminative orders and the NIRC suspended the above decisions taken by the bank; (5) the management filed a writ petition against the orders of the NIRC before the High Court in May 2005 and two years later, in 2007, the High Court rendered its decision and dismissed the application filed by the bank; (6) the bank thereafter filed an inter-court appeal before the Division Bench of the High Court but it rejected the review petition on 26 January 2009 after a lapse of another two years and referred the case back to the NIRC for remedial action; and (7) on 9 September 2009, the NIRC issued a Show Cause Notice to the bank but the management again filed a writ petition before the High Court requesting a stay order to pre-empt any action by the NIRC. The Government adds that the High Court directed the NIRC on 27 January 2012 to transfer the record of the case to the concerned provinces and the union has filed an inter court appeal, which is pending adjudication before the High Court in Islamabad.
3. 785. The Committee notes with deep concern that, to date, more than seven years after the registration was filed with the NIRC, and as a result of successive appeals by the bank, ignoring the initial protection order issued by the NIRC, the workers of the bank have still not been able to see their union registered and the union officers have remained dismissed for over seven years. The Committee recalls that justice delayed is justice denied. A long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to denial of the right of workers to establish organizations without previous authorization [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 105 and 307].
4. 786. The Committee understands that the recent deliberations occurred during a time when the status of the national labour legislation was unclear and that this may be the reason for the deferral of the case in January 2012 to the relevant provinces [The Committee had the opportunity to examine this issue in Case No. 2799 (Pakistan), 359th Report, March 2011, paras 970–990 and 362nd Report, November 2011, paras 98–101]. Observing however the recent steps taken to avoid a legal vacuum and, more particularly, the adoption of the Industrial Relations Act (IRA), 2012, on 14 March 2012, which has avoided the expiration of the NIRC and of the legal status of national and industry-wide trade unions, the Committee expects that the union will be registered without delay under this new legislation and requests the Government to keep it informed of developments.
5. 787. The Committee further notes with deep concern that, in apparent violation of the orders of the NIRC, the management of the bank transferred ten employees to different parts of the country and the services of five office bearers of the union including Bashir Ahmed (Vice President), Muhammad Farooq (General Secretary), Muhammad Ashraf Khan (Deputy General Secretary), and the President were terminated on 3 May 2005 and that this matter is also still pending before the courts. The Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. Measures taken against workers because they attempt to constitute organizations would be incompatible with the principle that workers should have the right to establish and join organizations of their own choosing without previous authorization. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly so that the necessary remedies can be really effective. An excessive delay in processing cases of anti union discrimination, and in particular lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitutes a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., paras 769, 338, 817 and 826]. In view of the NIRC injunction orders for the protection of the trade union officials and members and that these employees have nevertheless remained without remedy for over seven years, the Committee firmly urges the Government to take the necessary steps for their immediate reinstatement pending any remaining judicial decisions and to keep it informed of the progress made in this regard. In the event that reinstatement is not possible due to the time that has elapsed, the Committee expects that the Government will take steps to ensure the payment of adequate compensation to the persons concerned so as to constitute sufficiently dissuasive sanctions against such acts.