Effect given to the recommendations of the committee and the Governing Body - REPORT_NO354, June 2009

CASE_NUMBER 2229 (Pakistan) - COMPLAINT_DATE: 04-NOV-02 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 172. The Committee last examined this case at its March 2008 meeting [see 349th Report, paras 200–203]. On that occasion, it took note of the information provided by the Government in respect of the legislative amendments and urged it to amend the 2002 Industrial Relations Ordinance (IRO) as soon as possible so as to bring it into full conformity with Conventions Nos 87 and 98, ratified by Pakistan. It requested the Government to inform the Committee of Experts on the Application of Conventions and Recommendations, to which it refers the legislative aspects of this case, of the developments in this regard. The Committee regretted that the Government had failed to provide its observations on the alleged acts of anti-union discrimination against trade union officers of the Employees’ Old-Age Benefits Institution (EOBI) Employees’ Federation of Pakistan and on the measures taken to conduct an independent investigation in this respect. The Committee reiterated its previous request and strongly urged the Government to be more cooperative in the future.
2. 173. In its communications dated 1 November 2008 and 16 April 2009, the Government provides a copy of the Industrial Relations Act (IRA) 2008, repealing the Industrial Relations Ordinance (IRO) 2002. The Government indicates that the exemption under section 1(4)(f) of IRO 2002 has been withdrawn and therefore requests that this case be closed.
3. 174. The Committee notes the IRA 2008 and that it is an interim law, which will lapse on 30 April 2010 if not repealed sooner. During this period, a tripartite conference will be held to discuss the IRA 2008 in consultation with all stakeholders, and the IRA will be amended or new legislation drafted on the basis of the recommendations of that conference.
4. 175. The Committee further takes note of the following amendments to the IRO 2002 as embodied in the IRA 2008.
5. 176. The Committee notes with interest that:
   • – section 3(1)(d) of the IRO (requirement to affiliate with a federation at the national level registered with the National Industrial Relations Commission within two months after it is certified as a collective bargaining agent or after the promulgation of the IRO) has been replaced by a provision in the IRA that: “Workers’ and employers’ organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations and confederations of workers’ and employers’ organizations” (section 3(d));
   • – the minimum requirement for establishment of a national federation has been reduced to two registered trade unions under section 23(1) of the IRA;
   • – section 20(11) of the IRO, under which no application for determination of the collective bargaining agent at the same establishment may be made for a period of three years once a registered trade union has been certified as a collective bargaining agent, has been amended by shortening the required interval from three years to two years, under corresponding section 25(11) of the IRA;
   • – as to the Committee’s request to amend the IRO so as to allow workers to seek legal remedies against the acts of anti-union discrimination at any time, and not only during an industrial dispute, the proviso of section 49(4)(e) of the IRO, which prohibited the NIRC from granting interim relief except during pendency of an industrial dispute, has been removed in the corresponding section 26(8)(f) of the IRA; and
   • – as to the Committee’s request to engage in full consultations with the social partners on the possible amendment of the IRO in order to resolve issues concerning the functioning of the labour judiciary system, the IRA retains the National Industrial Relations Commission, while at section 56 the Labour Appellate Tribunals are resurrected to replace the High Court as the organ and venue for appeals in labour cases. The purpose of this amendment is explicitly stated in the “Statement of objects and reasons” of the IRA: “to revive the Labour Appellate Tribunals on persistent demand of trade unions/federations, in order to ensure speedy disposal of labour disputes”.
6. 177. The Committee further notes, however, that:
   • – section 1(4) of the IRO has been amended in the IRA by the removal from the excluded categories of workers only those employed on Ministry of Defence railway lines, by the Pakistan Mint, and by institutions established for payment of employees’ old-age pensions or for workers’ welfare. The Committee therefore requests the Government to take the necessary measures in consultation with the social partners to amend its labour legislation so as to ensure that workers of Bata Shoes company; Pakistan Security Printing Corporation; Pakistan Security Papers Ltd; establishments or institutions maintained for the treatment and care of sick, infirm, destitute and mentally unfit persons; members of Watch and Ward; security and fire services staff of an oil refinery; or establishments engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products, or of a seaport and airport; and administration of the State, enjoy the right to establish and join organizations of their own choosing;
   • – as concerns the Committee’s request to repeal section 19(1) of the IRO, which imposed measures of administrative control over trade union assets, section 19(1) of the IRO has been removed under section 24 “Returns” of the IRA; however, under section 16(1)(d) of the IRA the Registrar of trade unions has the power to inspect the accounts and records of registered trade unions or investigate or hold inquiries as he or she deems fit. Recalling that measures of administrative control over trade union assets, such as financial audits, should be applied only in exceptional cases, the Committee requests the Government to take necessary measures to amend or repeal section 16(1)(d) of the IRA; and
   • – section 65(5) of the IRO, which stipulated the disqualification of a trade union officer from holding any trade union office for the following term for committing an unfair labour practice and which covered a wide range of conduct not necessarily making it inappropriate to hold a position of trust, has been retained under section 73(5) of the IRA. The Committee therefore reiterates its previous request to amend this provision.
7. 178. The Committee expects that the labour legislation as finally amended will retain the amendments in the IRA 2008 insofar as they reflect the changes previously requested by the Committee in relation to the IRO 2002, and that the Government will otherwise take measures to fully comply with the Committee’s other previous requests, so as to ensure that its labour legislation is brought into full conformity with freedom of association principles. The Committee further expects that such measures will be taken in full and frank consultation with the social partners on any questions or proposed legislation affecting trade union rights and to the satisfaction of all parties concerned. The Committee requests the Government to inform the Committee of Experts on the Application of Conventions and Recommendations, to which it refers the legislative aspects of this case, of the developments in this regard.
8. 179. Regarding the alleged acts of anti-union discrimination against trade union officers of the EOBI Employees’ Federation of Pakistan, which date back to August 2003, the Committee deeply regrets that once again the Government has failed to provide its observations thereon as well as on the measures taken to conduct an independent investigation in this respect. The Committee once again recalls that 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 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 817]. The Committee therefore urges the Government to institute an independent inquiry to investigate the allegations of anti-union discrimination at the EOBI, and if the allegations are proven to be true to take the necessary measures to fully redress the acts of anti-union discrimination. The Committee requests the Government to keep it informed of the outcome of this investigation.