CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Pakistan (RATIFICATION: 1951)

Other comments on C087

Observation

Direct Request

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

Workers’ and employers’ organizations’ comments. The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee further notes the Government’s observation on the 2010 comments submitted by the All Pakistan Federation of United Trade Unions (APFUTU) regarding the difficulties in registering trade unions for the industries established in the City of Sialkot. The Government indicates that, while the management of the two unions concerned went to the Labour Courts and the National Industrial Relations Commission (NIRC) against the registration, the unions lodged cases of unfair labour practices against the management. The cases were decided by the courts in favour of one of the unions, but the members of the union backed down; as for the second union, the establishment was closed due to losses. The Committee notes the comments of the International Trade Union Confederation (ITUC) submitted on 31 July 2012, alleging violence leading to injury and arrests during demonstrations and strikes in the aviation, textile, education and health sectors, as well as dismissals following a strike in the electrical sector. The Committee requests the Government to provide comments on the above ITUC comments as well as on the 2011 ITUC allegations.

Legislative issues. The Committee recalls that, in its previous observation, it had noted that the Government had enacted the 18th Amendment to the Constitution, whereby the matters relating to industrial relations and trade unions were devolved to the provinces. In this respect, the Committee expressed the hope that any new legislation, whether at the provincial or national levels, would be adopted in full consultation with the social partners concerned and that these instruments would be in full conformity with the Convention. The Committee notes that industrial relations acts have been adopted in the Provinces of Balochistan, Khyber-Pakhtoonkhwa, Punjab and Sindh in 2010.

The Committee notes that the Industrial Relations Act (IRA), 2012, which regulates industrial relations and registration of trade unions and federations of trade unions in the Islamabad Capital Territory and in the establishments which cover more than one province (section 1(2) and (3)), replaces the Industrial Relations Ordinance (IRO) of 2011, commented upon by the Committee. It notes with regret that most of its previous comments on the Industrial Relations Act, 2008, and on the IRO, 2011, have not been addressed by the IRA, 2012. It further notes that the Balochistan IRA (BIRA), the Khyber-Pakhtoonkhwa IRA (KPIRA), the Punjab IRA (PIRA), and the Sindh Industrial Relations (Revival and Amendment) Act, 2010 (SIRA), all raise similar issues as the IRA, 2012.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that the IRA, 2012, excludes the following categories of workers from its scope of application: workers employed in services or installations exclusively connected with the armed forces of Pakistan, including the Factory Ordinance maintained by the federal Government (section 1(3)(a)); workers employed in the administration of the State other than those employed as workmen (section 1(3)(b)); members of the security staff of the Pakistan International Airlines Corporation (PIAC), or drawing wages in a pay group not lower than Group V in the PIAC establishment (section 1(3)(c)); workers employed by the Pakistan Security Printing Corporation or Security Papers Limited (section 1(3)(d)); workers employed by an establishment or institution for the treatment or care of sick, infirm, destitute and mentally unfit persons, excluding those run on a commercial basis (section 1(3)(e)); and workers of charitable organizations (section 1(3) read together with section 2(x) and (xvii)).

The Committee notes that section 1 of the BIRA, KPIRA, PIRA and SIRA further excludes: workers employed in services or installations exclusively connected with or incidental to the armed forces of Pakistan, including the Factory Ordinance maintained by the federal Government; members of the watch and ward, security or fire service staff of an oil refinery or an airport (and seaport – BIRA, KPIRA and SIRA); members of the security or fire service staff of an establishment engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas; and, in the PIRA and KPIRA only, persons employed in an establishment or institution providing education or emergency services excluding those run on a commercial basis. All exclude persons employed in the administration of the State but include those employed as workmen by the railway and Pakistan Post.

The Committee notes the Government’s indication that: (1) the industrial laws are framed by national circumstances and in the light of the space provided by Article 9 of the Convention; and (2) workers engaged in agriculture have the right to form unions under these enactments. The Committee recalls that, by virtue of Article 2 of the Convention, workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing and that the only exceptions authorized to this principle are set out in Article 9(1), which allows States to determine the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police. The Committee requests the Government to ensure that it, as well as the governments of the provinces, take the necessary measures in order to ensure that the legislation guarantees the abovementioned categories of employees the right to establish and join organizations of their own choosing to further and defend their social, economic and occupational interests.

Managerial employees. The Committee also notes that, pursuant to sections 31(2) of the IRA and 17(2) of the BIRA, KPIRA PIRA and SIRA, an employer may require that a person, upon his or her appointment or promotion to a managerial position, shall cease to be and shall be disqualified from being a member or an officer of a trade union. The Committee notes the Government’s indication that managerial workers can form associations. The Committee notes that the definition of workers in section 2 of the IRA, BIRA, KPIRA, PIRA and SIRA, excludes any person who is employed mainly in a managerial or administrative capacity. The Committee therefore requests the Government to indicate, and to request the governments of the provinces to indicate, the legislation under which, in full respect of the Convention, managerial employees may form and join associations.

Rights of workers and employers to establish and join organizations of their own choosing. The Committee notes that sections 8(2)(a) of the IRA and 6(2) of the BIRA, KPIRA, PIRA and SIRA, provide that only trade unions of workers engaged or employed in the same industry may be registered. The Committee notes the Government’s indication that there is no bar in the IRA for the establishment of inter-professional organizations or for affiliation by such unions with such federations. The Committee notes that this is the case for the BIRA, KPIRA, PIRA and SIRA as well.

The Committee notes that, under section 3(a) of the IRA, no worker shall be entitled to be a member of more than one trade union. The Committee requested the Government to indicate how workers who have more than one occupation and/or are employed by different establishments can exercise their right to establish and join trade unions of their own choosing for furthering and defending their interests, particularly in the light of the restrictions imposed by sections 8(2)(a) of the IRA, providing that only trade unions of workers engaged or employed in the same industry may be registered. The Committee notes the Government’s indication that section 3 strengthens trade unions by imposing restrictions on a worker not to be a member of more than one trade union, as being a member of one trade union makes the worker more committed to his political affiliation/cause and if a worker is a member of two unions in different establishments, or in the same establishments, it may create legal complications. The Committee notes that similar issues are raised under section 3(a) of the BIRA and the SIRA, and 3(i) of the KPIRA and the PIRA, in the light of the restrictions imposed by sections 6(2)(a) of the BIRA, KPIRA, PIRA and SIRA. The Committee recalls that it is important to allow workers in the private and public sectors who are engaged in more than one job in different occupations or sectors to join the corresponding unions as full members (or at least, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time). In other words, obliging workers to only join one trade union could unduly prejudice their right to establish and join organizations of their own choosing (General Survey of 2012 on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, paragraph 91). The Committee requests the Government to take all measures to amend the legislation taking into account the abovementioned principle. It requests the Government to take the necessary measures to ensure that the governments of the provinces likewise amend the legislation.

The Committee notes that, pursuant to sections 8(2)(b) of the IRA and 6(2)(b) of the BIRA, KPIRA, PIRA and SIRA, no other trade union is entitled to registration if there are already two or more registered trade unions in the establishment, group of establishments or industry with which that trade union is connected, unless it has, as members, not less than 20 per cent of the workers employed in that establishment, group of establishments or industry. The Committee notes the Government’s indication that this was fixed after consultation with the social partners and aims at promoting healthy trade union activities. The Committee considers that it is important for workers to be able to change trade union or to establish a new union for reasons of independence, effectiveness or ideological choice. Consequently, trade union unity imposed directly or indirectly by law is contrary to the Convention (General Survey, op. cit., paragraph 92). The Committee requests the Government to ensure that workers may establish organizations of their own choosing and that no distinction as to the minimum membership requirement is made between the first two or more registered trade unions and the newly created unions. It requests the Government to take the necessary measures to ensure that the governments of the provinces likewise amend the legislation.

The Committee further notes that sections 62(3) of the IRA, 25(3) of the KPIRA and PIRA, and 30(3) of the BIRA and SIRA, provide that, after the certification of a collective bargaining unit, no trade union shall be registered in respect of that unit except for the whole of such a unit. The Committee notes the Government’s indication that the collective bargaining unit is determined in consultation with the employer and collective bargaining agents. The Committee considers that, while a provision requiring certification of a collective bargaining agent for a corresponding bargaining unit is not contrary to the Convention, workers’ right to establish and join trade union organizations of their own choosing implies the possibility to create – if the workers so choose – more than one organization per bargaining unit. Taking into account the abovementioned principle, the Committee requests the Government to take the necessary measures to amend this provision so as to bring it into conformity with the Convention and to take the necessary measures to ensure that the governments of the provinces likewise amend the legislation.

Rights and advantages of the most representative trade unions. The Committee notes that certain rights are granted (in particular, to represent workers in any proceedings and to check-off facilities) only to collective bargaining agents, i.e. the most representative trade unions (sections 20(b) and (c), 22, 33, 35 and 65(1) of the IRA; sections 24(13)(b) and (c), 32, 41, 42, 68(1) of the BIRA; sections 24(13)(b) and (c), 28, 37, 38, 64(1) of the KPIRA; sections 24(20)(b) and (c), 27, 33, 34, 60(1) of the PIRA; sections 24(13)(b) and (c), 32, 41, 42, 68(1) of the SIRA). The Committee notes the Government’s indication that: (1) the right to check-off facilities and the right to call a strike are genuine rights of a collective bargaining agent; (2) all the social partners agreed on these rights during tripartite consultation for drafting of the new law; (3) as far as the issue of the right of representation is concerned, it can be mutually decided between the collective bargaining agent and the opposition. The Committee considers that workers’ freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the granting of privileges extending beyond that of priority in representation for such purposes as collective bargaining or consultation by the Government or for the purpose of nominating delegations to international bodies. This distinction should not therefore have the effect of depriving those trade unions that are not recognized as being among the most representative of the essential means of defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), of organizing their administration and activities, and formulating their programmes, as provided for in the Convention (see General Survey, op. cit., paragraph 97). The Committee requests the Government to take the necessary measures to amend the legislation so as to ensure full respect for the abovementioned principles.

In its previous comments, the Committee requested the Government to amend section 27-B of the Banking Companies Ordinance of 1962, which restricted the possibility of becoming an officer of a bank union only to employees of the bank in question, under penalty of up to three years’ imprisonment, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting, as candidates, persons who had been previously employed in the banking company. The Committee had noted the Government’s statement that: (1) a bill to repeal section 27-B of the Banking Companies Ordinance of 1962 had been submitted to the Senate; (2) the federal Cabinet at its meeting held on 1 May 2010 approved the repeal of this provision and that the final legislation was under preparation. The Committee notes that the Government indicates that the matter is under consideration with the Senate. The Committee once again expresses the firm hope that the relevant amendment will be adopted in the near future and requests the Government to transmit a copy thereof.

Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that sections 5(d) of the IRA, 15(e) of the BIRA, and 15(d) of the KPIRA, PIRA and SIRA, confers on the registrar the power to inspect the accounts and records of a registered trade union, or investigate or hold such inquiry into the affairs of a trade union as he or she deems fit. The Committee notes the Government’s indication that the registrar of a trade union is a public functionary who works for the smooth functioning of trade unions and who does not indulge in internal administration of the organizations during financial audit and scrutiny of annual returns. The Committee considers that supervision of the finances of a trade union is compatible with the Convention when: (1) it is limited to the obligation of submitting annual financial reports; (2) there are serious grounds for believing that the actions of an organization are contrary to the rule of law; or (3) it is limited to cases in which a significant number of workers call for an investigation of allegations of embezzlement or lodge a complaint (General Survey, op. cit., paragraph 109). Furthermore, the Committee considers that problems of compatibility with the Convention arise when the administrative authority has the power to audit the trade union’s accounts, to inspect such accounts and records and demand information at any time (see General Survey, op. cit., paragraph 110). The Committee requests the Government to take the necessary measures in order to ensure full respect of the abovementioned principles. The Committee requests the Government to take the necessary steps to ensure that the governments of the provinces take such measures as well.

Finally, the Committee is raising in a direct request issues regarding certain restrictions to the right to strike (prohibition of types of strike; broad definition of services where strike action can be forbidden; compulsory arbitration at the request of either party to a conflict; and penal sanctions, in particular for supporting illegal strikes).

Article 4. Dissolution of organizations. The Committee notes that the registration of a trade union can be cancelled for the following reasons: following a complaint made by the registrar that the trade union has contravened the provisions of the Act or its constitution, or failed to submit its annual returns to the registrar (IRA), or obtained less than 10 per cent (IRA) or 15 per cent (BIRA, KPIRA and PIRA – the latter specifying “during two consecutives referendums”) of total votes polled in an election for determination of a collective bargaining agent (sections 11(1)(a), (d), (e) and (f) of the IRA, 12(1)(a) and (b), and 12(3)(d) of the BIRA, KPIRA and PIRA, and 12(1)(a) and (b) of the SIRA); if the statement of expenditure of a union is found incorrect following an audit of the annual returns (section 16(5) of the IRA); if a person who is disqualified under section 18 for having been convicted and sentenced to imprisonment for two years or more for committing an offence involving moral turpitude under the Pakistan Penal Code is elected to be an officer of a registered trade union (section 11(5) of the IRA); for having been convicted of the offence of embezzlement or misappropriation of funds (BIRA and PIRA), or of contraventions to the Act (KPIRA and SIRA), or heinous offence under the Pakistan Penal Code, is elected to be an officer of a registered trade union (section 12(2) and (7) of the BIRA, KPIRA, PIRA and SIRA). The Committee recalls that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees. This can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution (General Survey, op. cit., paragraph 162). The Committee therefore requests the Government to take the necessary measures to amend the legislation so as to bring it into conformity with the Convention taking into account the principles above and to take all the necessary measures to ensure that the governments of the provinces take the measures to likewise amend the legislation.

The Committee notes that, under the IRA, the Commission’s decision directing the registrar to cancel the registration of a union cannot be appealed in court (section 59). The Committee recalls that cancellation of a trade union’s registration should only be possible through judicial channels and that measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association. The Committee further emphasizes that judges should be able to deal with the substance of a case to enable them to decide whether or not the measure of dissolution would not be in violation of the rights accorded to occupational organizations by the Convention. The Committee requests the Government to take the necessary measures to amend the IRA so as to ensure that any decision to cancel trade union registration can be appealed in court.

Export processing zones (EPZs). With regard to the right to organize in EPZs, the Committee recalls that it had previously noted the Government’s statement that the Export Processing Zones (Employment and Service Conditions) Rules, 2009, had been finalized in consultation with the stakeholders and would be submitted to the Cabinet for approval. The Committee notes the Government’s indication that the rules have not yet been finalized. The Committee once again requests the Government to provide detailed information on the progress made in adopting the Export Processing Zones (Employment and Service Conditions) Rules, 2009, and a copy thereof as soon as they are adopted. The Committee recalls that the Government may avail itself of the technical assistance of the Office.

The Committee strongly hopes that all necessary measures will be taken to bring the national and provincial legislation into full conformity with the Convention and requests the Government to provide information on all steps taken or envisaged in this respect.

The Committee is raising other points in a request addressed directly to the Government.