Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 359, Marzo 2011

1. 970. The complaint is set out in communications by the Muttahida Labour Federation (MLF) and the Pakistan Workers Federation (PWF) dated 20 May, 30 June and 31 July 2010. The PWF sent additional observations in communications dated 4 October 2010 and 7 February 2011. In a communication dated 12 November 2010, the International Trade Union Confederation (ITUC) associated itself with the complaint.
2. 971. The Government forwarded its observations in a communication dated 27 August 2010.
3. 972. 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 complainants’ allegations

1. 973. In their communications dated 20 May, 30 June, 31 July and 4 October 2010, the complainant organizations, the MLF and the PWF, inform that the Industrial Relations Act (IRA) 2008, which was an interim law, expired on 30 April 2010. The complainant organizations indicate that despite the commitment expressed at the 98th Session of the ILO International Labour Conference in 2009 to amend the said law, the Government has neither amended nor extended it. According to the complainants, the expiry of the IRA 2008 and the absence of a new legislative act has caused the worst legal crisis in the country’s labour history: workers have no institution to turn to for relief against their victimization and unfair labour practices by employers; labour courts and the registrar of trade unions at provincial and district levels ceased to function as from 1 May 2010; thousands of cases filed by workers in the labour courts are held in abeyance; no new unions can be formed or legally registered; and the process of collective bargaining with employers has stopped. Against this background, the status of national industrial trade unions and federations became paradoxical with regard to their capacity to maintain legal identity and to bargain with the respective employers in enterprises operating at the national level (such as railways, oil and gas; Pakistan Water and Power Development Authority; postal, telecommunication, Pak PWD, etc.). Moreover, many employers at the national undertakings are reluctant to enter into dialogue and negotiate with the elected collective bargaining agents determined earlier under section 30 of IRA 2008.
2. 974. The MLF and the PWF explain that meanwhile, the Parliament of Pakistan enacted the 18th Constitutional Amendment, which transferred the responsibility for labour issues to the provincial governments. Consequently, provincial governments began legislating on the matter. For instance, the government of Punjab, the largest province in the country, has promulgated the Industrial Relations Ordinance (IRO) 2010. According to the complainants, this legislation specifically excludes the jurisdiction of the National Industrial Relations Commission (NIRC) to register and determine collective bargaining agents in national institutions and adjudicate industrial disputes. The complainants refer, in particular, to sections 82 and 83 of the Punjab IRO, 2010 which stipulate the following:
3. 82. Repeal and savings – (1) Notwithstanding the repeal of the Industrial Relations Act, 2008 (IV of 2008), hereinafter referred to as the repealed Act.
   • (a) every trade union registered under the repealed Act shall be deemed to be registered under this Ordinance.
4. 83. Transfer of cases from National Industrial Relations Commission –
5. (1) All the cases pending before the National Industrial Relations Commission, constituted under the Industrial Relations Act, 2008 (IV of 2008) shall stand transferred to the Tribunal, Labour Court and Registrar having jurisdiction in the matter.
6. (2) The National Industrial Relations Commission shall transfer the record of all the cases and trade unions to the Tribunal, Labour Court or Registrar.
7. 975. The complainant organizations further refer to the 18 June 2010 judgement of the Sindh High Court (Karachi) in which the court decided that the IRA 2008 stood repealed on 30 April 2010 by force of its section 87(3) and declared that the Industrial Relations Ordinance (IRO), 1969 was now once again in force until altered, repealed or amended by the competent authority. The complainants further refer to paragraphs 2 and 3 of Notification No. PAS/Legis-B-16/2010, dated 5 July 2010, on the Industrial Relations (Revival & Amendment) Act, 2010, Sindh Act No. XV of 2010, which provide the following:
8. 2. Revival of Act No. IV of 2008. The Industrial Relations Act, 2008 (Act No. IV of 2008) is hereby revived with effect from 1st May, 2010 as if it had never been repealed.
9. 3. Amendment of section 87 of Act No. IV of 2008. In the Industrial Relations Act, 2008, on revival, in section 87, sub-section (3) shall be omitted.
10. 976. The complainants explain that the NIRC was the regulatory authority for registration of nationwide industrial trade unions, federations and confederations and determination of collective bargaining agent of nationwide trade unions. As the IRA 2008 is not applicable in the provinces of Sindh and Punjab on account of promulgation of the provincial laws, the NIRC has no authority in these provinces.
11. 977. The PWF indicates that is has filed a writ petition before the APEX Court of Pakistan (Supreme Court of Pakistan) under article 184(3) of the Constitution of Pakistan against infringement of fundamental freedom of association rights guaranteed under article 17 of the Constitution.
12. 978. It further indicates that while the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs has issued a “clarification in respect of cases of industrial disputes which do not belong to a single province and are in the nature of industry-wise character”, wherein it considered that in such cases, the NIRC “may proceed in the
    • matters …, subject to existence of relevant laws”, this interpretation is not being followed by some provincial high courts on the ground that the IRA 2008 has expired.
13. 979. In view of the above, the complaint organizations request that a law on industrial relations be promulgated so as to allow national industrial trade unions and federations to maintain their legal identity and bargain collectively with employers of national undertakings, and so as to ensure that protection against unfair labour practices also extends to their trade union members and office bearers. They further request the NIRC to be revived. The complainants indicate that a new legislation can be adopted by incorporating an amendment in the 18th Constitutional Amendment restoring Item No. 27 in the Concurrent Federal List contained in the 4th Schedule of the Constitution pertaining to “Trade Unions, Industrial and Labour Disputes” which could enable the federal Government to restore the law on the above subject in order to comply with the principles of freedom of association and collective bargaining.
14. 980. In its communication dated 7 February 2011, the PWF adds that the newly adopted Punjab legislation runs counter to a number of Convention No. 87 and 98 principles, including an excessively high minimum membership requirement, administrative dissolution of trade unions and provisions which would have an impact on collective bargaining rights.

B. The Government’s reply

1. 981. In its communication dated 27 August 2010, the Government indicates that the IRA 2008 remained in force until the matter was challenged in a court of law. The Sindh High Court, Karachi, in a judgment dated 18 June 2010 decided that the IRA 2008 stood repealed on 30 April 2010 by virtue of its section 87(3) and that Industrial Labour Ordinance (IRO) 1969 was once again in force and would stay in force unless altered, repealed or amended by the competent authority, as IRO 1969 was one of the pieces of legislation protected under article 268(1) of the Constitution. Therefore, according to the Government, at present, there is no legal vacuum and trade union issues at the national level are being dealt with by the National Industrial Relations Commission (NIRC) and inter-provisional commissions. The Government further indicates that the clarification regarding the functioning of the NIRC issued by the Law and Justice Division has further facilitated the working of trade unions and their federations at the national level.

C. The Committee’s conclusions

1. 982. The Committee notes that this complaint arises from the expiry, on 30 April 2010, of the Industrial Relations Act (IRA) of 2008. The IRA 2008 was adopted as an interim law, due to expire, by virtue of its section 87(3), on 30 April 2010. According to the complainants, the lapsing of the national industrial relations legislation and the devolution of the matters relating to industrial relations and trade unions to the provinces by virtue of the 18th Amendment to the Constitution has given rise to an untenable situation for national trade union organizations and an absence of relevant machinery for the protection of freedom of association.
2. 983. The Committee notes that the complainants allege that the expiry of the IRA 2008 and the absence of a new Act have caused a legal crisis and a vacuum with regard to the regulation of labour relations in the country. In particular, according to the complainants, workers have no institution to turn to for relief against their victimization and unfair labour practices by employers; labour courts and the registrar of trade unions at provincial and district levels ceased to function as from 1 May 2010; cases filed by workers in the labour courts are held in abeyance; no new unions can be formed or legally registered and the process of collective bargaining with employers has stopped; the status of national industrial trade unions and federations became paradoxical with regard to their capacity to maintain legal identity and to bargain with the respective employers in enterprises operating at the national level; and many employers at the national undertakings are reluctant to enter into dialogue and negotiate with the elected collective bargaining agents determined earlier under section 30 of IRA 2008.
3. 984. The Committee further notes the 18 June 2010 judgment of the Sindh High Court (Karachi) in which the court decided that the IRA 2008 stood repealed on 30 April 2010 by virtue of its section 87(3) and declared that Industrial Relations Ordinance (IRO), 1969 was now once again in force until altered, repealed or amended by the competent authority. The Committee further notes that at least two provincial governments have legislated on the matter: the government of Punjab has promulgated the Industrial Relations Ordinance (IRO) 2010, and on 5 July 2010, the government of Sindh adopted the Industrial Relations (Revival & Amendment) Act, 2010. The complainant raises specific concerns with respect to the conformity with Conventions Nos 87 and 98 of the minimum membership requirements, union dissolution and collective bargaining provisions in the Punjab IRO.
4. 985. The Committee notes that the complainants also raise concerns with regard to the status of the NIRC. In this respect, the Committee notes that the Ministry of Law, Justice and Parliamentary Affairs has issued a “clarification” in respect of cases of industrial disputes which involve more than one province and nationwide industries, wherein it considered that in such cases, the NIRC “may proceed in the matters …, subject to existence of relevant laws”. In this respect, the Committee notes that while the Government indicates that the NIRC continues to function, the complainants allege that the above interpretation is not being followed by some provincial high courts on the ground that the IRA 2008 has expired and that following promulgation of the provincial laws, the NIRC has no authority in the provinces of Punjab and Sindh.
5. 986. The Committee further notes that while the Government indicates that pursuant to the decision of the High Court of Sindh, the IRO 1969 was now in force and therefore, there is no legal vacuum with regard to the regulation of labour relations in the country, the Committee understands that the competence of the High Court of Sindh is limited to the territory of Sindh. It further notes that while some provincial governments have moved to pass their own labour legislation based on the expired IRA 2008, others have not. It therefore expresses its concern over evident obstacles in the current situation for national industry-wide trade unions to exercise their rights and observes that the lack of clarity in relation to the national legislative framework for industrial relations and trade union rights could restrict the freedom of association rights of the national workers’ organization. The Committee therefore expects that new legislation fully ensuring the trade union rights of workers, including at the national level, will be adopted in the country in the very near future with the full consultation of the social partners concerned. In this respect, the Committee emphasizes the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 1072–1074].
6. 987. The Committee notes that the Committee of Experts on the Application of Conventions and Recommendations had previously commented upon a number of significant restrictions on the right to organize under the IRO 1969; the IRO 2002, which replaced the IRO 1969; as well as the IRA 2008, which replaced the IRO 2002. It also recalls Case No. 2229, still pending before the Committee, in which it considered that numerous provisions of both the IRO 2002 and IRA 2008 were not in conformity with Conventions Nos 87 and 98, ratified by Pakistan. The Committee therefore expects that any adopted legislation, including that adopted at provincial level, will be in full conformity with the Convention and requests the Government to keep it informed in this respect.
7. 988. Noting the complainants’ allegations with regard to the NIRC and taking into account the Government’s reply thereon, the Committee expects that pending adoption of the relevant legislation, this body can exercise its functions in adjudicating industrial disputes and dealing with issues relating to the registration and determination of collective bargaining agents in national institutions and industries of national scope and importance. Similarly, provisions should be made to ensure that national trade unions and employers’ organizations are able to exercise their activities at the national level in a legal and effective manner. The Committee requests the Government to keep it informed as to the manner in which the NIRC has continued to function in the current context, and to provide any relevant statistics on the cases reviewed by it.
8. 989. It reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.
9. 990. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.