Effect given to the recommendations of the committee and the Governing Body - Report No 399, June 2022

Case No 2902 (Pakistan) - Complaint date: 12-OCT-11 - Follow-up

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

1. 26. The Committee last examined this case, which was submitted in October 2011 and which concerns allegations that the management of an electricity enterprise in Karachi refused to implement a tripartite agreement to which it was a party, as well as allegations of violence against protesting workers, dismissals and the filing of criminal charges against trade union office bearers, at its October 2020 meeting [see 392nd Report, paras 114–120]. On that occasion, the Committee requested the Government to continue to actively engage with the Karachi Electric Supply Corporation Labour Union (KESC Labour Union) and the enterprise and to facilitate dialogue between them with a view to ensuring that the dismissed workers who had not been reassigned are paid adequate compensation without delay and to indicate whether any charges were still pending against the dismissed workers. The Committee also expressed its firm expectation that the National Industrial Relations Commission (NIRC) would examine without delay the pending claims of anti-union discrimination filed by the KESC Labour Union.
2. 27. The complainant provided additional information in communications dated 21 March 2020, 8 January and 1 April 2021 and 6 January 2022. In communications dated 2 and 9 September 2021, the Pakistan Workers’ Federation, to which the KESC Labour Union is affiliated, associated itself with the case and provided additional information. In particular, the complainants denounce that even though the KESC Labour Union made efforts to resolve the outstanding issues following its determination as a collective bargaining agent in December 2019, the enterprise ignored its efforts, refused to recognize its bargaining status (no bilateral negotiations were initiated or accepted by the management), did not reply to the charter of demands from January 2020, issued termination letters and filed false charges against the union through its agents, pocket unions and pressure groups. In this respect, the complainants point to four cases pending before the Sindh High Court, seven cases before the Islamabad High Court, ten cases before the Chairperson/Registrar of Trade Unions at the NIRC Islamabad, one case before the NIRC Karachi and two cases before the Supreme Court, all of which are against the KESC Labour Union. According to the complainants, the aim of these appeals and petitions was to postpone the resolution of the pending issues, to stay negotiations on the charter of demands and to implicate the union in litigation, showing the management’s reluctance to trade union formation and collective bargaining at the enterprise. As a result, workers have been deprived of their basic right to bargain collectively, with a collective agreement proposal, including a revision of pay scale, pending since 2011, and the new charter of demands pending since February 2020.
3. 28. The complainants allege that, in addition to the refusal to negotiate, the management, through its pocket union, challenged the internal election for the determination of the collective bargaining agent. They also denounce that the NIRC Chairperson ordered a new internal election in February 2020, thus suspending the union’s functioning and its bargaining efforts pending the process and that the management also tried to force 600 active KESC Labour Union members to withdraw their membership and affiliate with the management’s pocket union. Furthermore, although this case was presented at the Federal Tripartite Consultative Committee meeting in Islamabad in August 2021, neither the enterprise nor the provincial Government of Balochistan took into account the Committee’s recommendations. The complainants therefore consider that the management should hold social dialogue with the KESC Labour Union to reach an amicable solution to the pending issues.
4. 29. Concerning the long-standing issue of payment of adequate compensation to around 460 workers who had been dismissed but not reassigned, the complainants allege that the management has not entered into dialogue with the union, banned access to the workplace to the union Chairperson and hired more than 10,000 workers though third-party contractors to replace the retrenched permanent workers, while claiming that there is no available vacancy at the enterprise. The complainants allege that even though the NIRC decided in favour of more than 422 dismissed workers, the management has not complied with the order and challenged it before the Sindh High Court, where the cases are currently pending.
5. 30. With regard to the anti-union discrimination cases filed by the union at the NIRC, the complainants inform that after prolonged litigation, the NIRC ordered reinstatement of around 100 workers, which was confirmed by the full bench, but the management filed appeals against the decision to the Sindh High Court. An additional 313 cases were also settled by the NIRC but are currently pending appeal by the management, due to the ongoing appointment of five NIRC members. The complainants indicate that due to the prolonged proceedings, most of the workers have attained retirement age and even then the management refused to provide retirement letters and pay their dues, creating impediments to their receipt of pension benefits.
6. 31. As to the cases filed by the enterprise against a number of dismissed workers, the complainants claim that while the Ministry of Overseas Pakistani and Human Resources Development (OPHRD) tried to convince the enterprise to withdraw the pending cases, the enterprise has not done so.
7. 32. The Government provides its observations in communications dated 11 and 18 October 2021 and 10 February 2022. It reiterates its full commitment to international obligations and affirms that the country has the requisite infrastructure and legislative framework to support the implementation of 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). The Government submits an update on the case provided by the NIRC, which indicates that the Federal Secretary from the Ministry of OPHRD met with the NIRC Chairperson in order to find a fruitful solution to the pending dispute. The NIRC Chairperson visited the enterprise and called both parties to the Karachi Bench in October 2021. Two representatives of each party attended the meeting, elucidated their viewpoints and were directed to submit their positions in written form together with documentary evidence. While both parties furnished the written statements, they did not provide the requested documents and were therefore asked to do so again. As soon as the documents are received from the union and the management, the NIRC will prepare a report for transmission to the concerned authorities.
8. 33. Concerning the dispute on the election of a collective bargaining agent at the company, the Government indicates that an appeal on the issue was pending before the full bench of the NIRC in Islamabad, with a hearing fixed in October 2021. It adds that the collective bargaining agent tenure of the KESC Labour Union ended in January 2022 and, since this period cannot be extended, a new referendum to determine the collective bargaining agent was initiated upon request from another union at the company, the Workers’ Power Union, and the NIRC appointed an officer to conduct the proceedings. In February 2022, registered trade unions at the enterprise and the management were requested to provide all relevant documentation for these proceedings.
9. 34. The Committee takes due note of the information provided by the complainants and the Government and regrets to observe that more than ten years after the submission of the complaint, the parties have not yet been able to reach a solution to the outstanding issues, despite the fact that the union was declared as the collective bargaining agent for workers at the enterprise in December 2019 and was thus in a position to negotiate with the management, a development that the Committee had welcomed in its previous examination of the case, trusting that it would facilitate the resolution of any pending matters.
10. 35. The Committee observes, however, from the information provided that there continue to be tensions between the KESC Labour Union and the enterprise revolving around the unresolved issues (payment of compensation to the dismissed workers, claims of anti-union discrimination against the enterprise and criminal charges filed against unionists), as well as around the alleged refusal by the management to recognize the union as a collective bargaining agent and the lack of collective bargaining resulting therefrom, with no negotiations initiated or accepted by the enterprise. In this regard, the Committee also observes the complainants’ concerns that the enterprise’s anti-union attitude, including numerous petitions filed against the KESC Labour Union and attempts at challenging its bargaining status and forcing its members to withdraw their affiliation, shows the management’s reluctance to trade unions and collective bargaining and hinders the resolution of the outstanding issues. While the complainants further allege that neither the enterprise nor the Government of Balochistan took into consideration the Committee’s recommendations when this case was presented to the Federal Tripartite Consultative Committee (a national tripartite institution), the Government does not elaborate on this point but affirms that several procedures have been initiated to address the pending issues, including a meeting between the NIRC Chairperson and the Ministry of OPHRD, as well as a meeting between the parties to express their views and provide relevant documents, regarding which the NIRC Chairperson should submit a report to the concerned authorities. The Committee notes that the Government also informs that an appeal on the dispute concerning the election of a collective bargaining agent was pending before the full bench of the NIRC in Islamabad, without providing details as to its outcome, and further indicates that, following the expiration of the two-year tenure of the collective bargaining agent status of the KESC Labour Union in January 2022, a new referendum to determine the collective bargaining agent was initiated upon request from another union at the enterprise.
11. 36. While taking due note of the above, the Committee cannot but regret that in the two-year period during which the KESC Labour Union held the status of the collective bargaining agent at the enterprise, no negotiations were held between the union and the management, and that the parties were embroiled in court proceedings resulting from numerous petitions against the union, thus impeding peaceful resolution of the long-standing issues through collective bargaining. The Committee wishes to recall in this regard that both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence. Recognition by an employer of the main unions represented in the undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking. The Committee underlines the importance of collective disputes being conducted and resolved peacefully within the framework of collective bargaining. If the negotiations are not successful because of disagreement, the Government should consider, with the parties, ways of overcoming such an obstacle through a conciliation or mediation mechanism, or, if the disagreements persist, through arbitration by an independent body trusted by the parties [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1329, 1355, 1235 and 1322]. Observing that a new referendum was initiated to determine the collective bargaining agent at the enterprise, the Committee requests the Government to provide information on the outcome of the referendum and trusts that the procedure will be conducted promptly, in a transparent manner, and that the duly elected bargaining agent will be able to engage in good faith collective negotiations with the employer. The Committee also requests the Government, irrespective of the results of the referendum, to continue to encourage dialogue between the KESC Labour Union and the enterprise with a view to resolving all other outstanding issues in this case, as detailed below, and to keep it informed of the outcome of the meetings between the parties organized by the NIRC Chairperson.
12. 37. With regard to the long-standing issue of payment of adequate compensation to around 460 workers who had been dismissed but not reassigned and the pending claims of anti-union discrimination filed by the KESC Labour Union to the NIRC, the Committee observes from the information provided by the complainants that, after prolonged litigation, the NIRC issued decisions in favour of more than 400 workers, including reinstatement of 100 workers, but that the enterprise refused to comply with the orders, challenging them before the full bench of the NIRC or the Sindh High Court. The Committee understands that many of the concerned workers have since reached retirement age and observes the complainants’ concerns that the enterprise refused to provide retirement letters and grant workers their dues, creating impediments to the receipt of pension benefits. While welcoming the NIRC decisions favourable to the workers, the Committee must express concern both at the prolonged nature of the litigation pointed to by the complainants, which seems to have diminished the effect of any measures ordered, and at the enterprise’s alleged non-compliance with the orders made (the Committee does not have at its disposal details as to the measures ordered, except for the order to reinstate 100 workers). In these circumstances, regretting the absence of any response from the Government on these matters and recalling that delay in the conclusion of proceedings giving access to remedies diminishes in itself the effectiveness of those remedies, since the situation complained of has often been changed irreversibly, to a point where it becomes impossible to order adequate redress or come back to the status quo ante [see Compilation, para. 1144], the Committee requests the Government to provide information on the outcome of any pending proceedings concerning reinstatement, compensation or other redress for acts of anti-union discrimination ordered by the NIRC or the courts. It urges the Government to take the necessary measures to ensure that any judicial or quasi-judicial decisions ordering redress are rapidly and fully implemented by the enterprise and that the retired workers are allowed to obtain their pensions. In view of the concerns on the prolonged nature of litigation, the Committee expects the Government to take the necessary measures to ensure access to effective means of redress for alleged prejudice based on trade union membership or activities.
13. 38. Finally, as to the charges filed by the enterprise against the dismissed workers, the Committee recalls from its previous examinations of the case that the Ministry of OPHRD was pursuing the enterprise to withdraw the cases and compensate the dismissed workers. The Committee regrets to observe, from the information provided by the complainants that, despite the Ministry’s efforts, the enterprise has not withdrawn any pending cases. Considering that criminal charges pending against dismissed workers for a prolonged period of time, especially in circumstances of an ongoing collective dispute between the union representing them and the employer, may have serious implications on the union’s exercise of legitimate trade union activities, the Committee requests the Government to step up its efforts in bringing the management and the union together with a view to reaching a solution to this long-standing issue.