Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Pakistan (Ratification: 1952)

The Committee notes the information in the Government's report as well as the communication from the Pakistan National Federation of Trade Unions (PNFTU) dated 29 August 1995.

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

- Article 4 of the Convention. Limitations on free collective bargaining in the banking and financial sector (sections 38A to 38I of the Industrial Relations Ordinance, 1969); and

- denial of the rights guaranteed by Articles 1, 2 and 4 for workers in export processing zones (section 25 of the Export Processing Zones Authority Ordinance, 1980).

1. As in its previous reports, it is stated in the Government's report that the procedure used by the Wage Commission for banks and financial institutions is intended to provide workers with the opportunity to bargain with the Commission without any hesitations instead of bargaining directly with the employer. The Government adds that workers allowed to bargain freely with their employers not only form their unions and put one impediment after the other in the shape of nagging demands on a recurring basis, but also pollute discipline and the working environment in the branches of activity as they have too many office bearers at an overwhelming majority in the operational units. According to the Government, this is aggravated by the fact that officers can also form associations under the law and that the branch managers and officers at grade-1 level are members with their loyalties divided more towards the interests of their associations. Thus, discipline amongst the staff and the overall efficiency is deteriorating.

The Government states that the Wage Commission pronounces its awards after having considered all the relevant facts and circumstances of socio-economic importance and giving patient hearings to the representatives of the concerned parties in order to achieve a consensus on all the issues raised by either party and the matters otherwise considered by the Commission. The Wage Commission issued its 7th Wage Award last year, to be effective from 1 January 1993, and has also given its views on staff union/management relations.

The Committee must once again recall that Article 4 provides that measures appropriate to national conditions shall be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations. It has indicated that, in the first instance, voluntary collective bargaining should be encouraged between the parties. Any external administrative structure established should be referred to only when both parties agree and its purpose should be that of facilitating the conclusion of a collective agreement. The Committee, therefore, must once again request the Government to reconsider the question of collective bargaining in the banking and financial sector so as to ensure that both parties agree to any settlement in respect of the terms and conditions of employment. It expresses the firm hope that the Government will be able to indicate the progress made in this regard in its next report and would ask the Government to supply a copy of the award of the Wage Commission which is actually in force.

2. As regards the denial of freedom of association and the right to bargain collectively for workers in export processing zones (EPZs), the Committee notes the comments made by the Government in its report under Convention No. 87. The Committee had noted in its previous comments that the report of the tripartite Task Force on Labour had recommended that labour laws apply throughout the entire country without discrimination. In its latest report, the Government has indicated that the Task Force report is under active consideration by the Cabinet Committee. Given that the Task Force report was drafted in July 1994, the Committee expresses the firm hope that action will be taken on its recommendations in the very near future and that it will include measures to ensure that the provisions of this Convention are applied to EPZs. It requests the Government to indicate the progress made in this regard in its next report.

3. The Committee notes that the communication of the PNFTU refers to a Supreme Court decision dated 11 August 1994 which severely restricts the right to judicial recourse of dismissed workers under section 25A of the Industrial Relations Ordinance (IRO), 1969. In this judgement, the Supreme Court determines that "a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment is not a worker (as defined by the IRO) unless his dismissal, discharge, etc., had connection with or was in consequence of an industrial dispute or whose dismissal, discharge, etc., had led to such a dispute". The Supreme Court went on to hold that such persons were therefore not entitled to the remedy provided in section 25A of the IRO.

The Committee would recall to the Government that, in freely ratifying this Convention, it has undertaken to ensure the protection of workers against acts of anti-union discrimination calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities, in accordance with Article 1(2)(b). The above court decision would appear to have the effect of blocking any legal recourse to dismissed workers, including those who have been dismissed for their trade union membership or activities. The Committee requests the Government to take the necessary measures to amend the IRO in order to ensure that dismissed workers have the right to appeal to legal proceedings so as to protect them from anti-union dismissals.