Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2009. The Committee further notes the comments made by the Pakistan Workers’ Federation (PWF) and the International Trade Union Confederation (ITUC) on the application of the Convention in law and in practice in communications dated 2 and 26 August 2009 respectively. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2096, 2399, 2520 (see 353rd Report) and 2229 (see 354th Report), dealing with the same issues.

The Committee recalls that for several years it has been commenting on serious discrepancies between national legislation and the Convention. At its 2008 session, the Committee took note of the Industrial Relations Act (IRA), adopted in November 2008, which amended the Industrial Relations Ordinance (IRO) 2002. It further noted that the IRA was an interim law due to lapse on 30 April 2010. During this period, a tripartite conference would be held to draft a new legislation in consultation with all stakeholders. The Committee expresses the firm hope that the new legislation will take into account the comments set forth.

Scope of application of the Convention. The Committee notes that the IRA excludes the following categories of workers from its scope of application:

–      workers employed in services or installations exclusively connected with or incidental to the armed forces of Pakistan, including the Ordnance Factory maintained by the federal Government (section 1(3)(a));

–      members of the security staff of the Pakistan International Airlines Corporation (PIAC) (section 1(3)(b));

–      workers employed by the Pakistan Security Printing Corporation or the 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));

–      members of the watch and ward, security or fire service staff of an oil refinery, an airport or a seaport (section 1(3)(f));

–      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 (section 1(3)(g));

–      agricultural workers (section 1(3) read together with 2(ix) and (xiv)); and

–      workers of charitable organizations (section 1(3) read together with 2(ix) and (xiv)).

The Committee requests the Government to take the necessary measures in order to ensure that the new legislation guarantees the abovementioned categories of employees the rights enshrined in the Convention.

The Committee notes that persons employed in the administration of the State are excluded from the scope of application of the IRA by virtue of its section 1(3)(b). The Committee requests the Government to indicate whether the new industrial relations legislation will grant to this category of workers collective bargaining rights.

The Committee recalls that it had previously requested the Government to guarantee the right to organize of workers employed in EPZs, PIAC and in the Karachi Electric Supply Company (KESC). The Committee notes the Government’s indication that trade unions are free to operate at the KESC and that trade union activities have been restored and a collective bargaining agent was determined through a referendum at the PIAC. With regard to the latter undertaking, the Government indicated that Chief Executive Order No. 6 was repealed. The Committee further notes the Government’s statement that the Export Processing Zones (EPZs) (Employment and Service Conditions) Rules, 2009 had been finalized in consultation with the stakeholders and will be submitted to the Cabinet for approval. The Committee hopes that the Rules will guarantee the right to organize to workers in EPZs and requests the Government to provide a copy thereof as soon as they are adopted.

Article 1 of the Convention. (a) Sanctions for trade union activities. The Committee had previously requested the Government to repeal section 27-B of the Banking Companies Ordinance of 1962, which imposed sanctions of imprisonment and/or fines for carrying out trade union activities during office hours. The Committee notes the bill to amend the Banking Companies Ordinance which would repeal section 27-B and the Government’s indication that the bill has been moved to the Senate. The Committee expresses the firm hope that section 27-B of the Banking Companies Ordinance will be repealed in the near future and requests the Government to provide information in this respect.

(b) Lack of sufficient legislative protection for certain categories of workers dismissed for their trade union membership or activities. The Committee had previously noted the statement of the All Pakistan Federation of Trade Unions (APFTU), according to which the newly imposed section 2-A of the Services Tribunal Act had debarred workers engaged in autonomous bodies and corporations such as the Pakistan Water and Power Development Authority (WAPDA), railway, telecommunication, gas, banks, the Pakistan Agricultural Storage and Supply Corporation (PASSCO), etc., from seeking redress for their grievances from the labour courts, labour appellate tribunals and the National Industrial Relations Commission (NIRC) in the case of unfair labour practices committed by the employer. In this respect, the Committee requested the Government to indicate the measures taken to reform section 2-A of the Services Tribunal Act. The Committee notes the Government’s indication that a Bill for amendment of this provision has been moved to the Senate. The Committee expresses the firm hope that section 2-A of the Services Tribunals Act will be repealed in the near future so as to ensure that appropriate means of redress are available to workers concerned. It requests the Government to provide information in this respect.

Article 2. Protection against acts of interference. The Committee had previously requested the Government to indicate the specific provisions of the legislation which prohibited and penalized acts of interference by employers and their organizations in internal affairs of workers’ organizations. The Committee notes with interest section 17 of the IRA which lists actions constituting unfair labour practices on the part of employer (such as participation in the promotion, formation and activities of a trade union, inducing any person to refrain from becoming or ceasing to be a member or officer of a trade union, by conferring or offering any advantage, etc.) and section 72(10) of the IRA punishing such acts by fine of up to 30,000 rupees.

Article 4. Collective bargaining. The Committee notes that it results from section 24(1) of the IRA that if the trade union is the only trade union at the enterprise and does not have at least one third of the employees as its members, no collective bargaining is possible at a given establishment. The Committee recalls that it had previously requested the Government to amend similar section which existed under the IRO 2002. The Committee therefore once again requests the Government to take the necessary measures in order to ensure that if there is no union representing the required percentage to be designated as a collective bargaining agent, collective bargaining rights are granted to the existing unions, at least on behalf of their own members.

The Committee notes sections 31(1) and (2)(b) and 34(1) of the IRA according to which the NIRC may determine or modify a collective bargaining unit on an application made by a workers’ organization or reference made by the federal Government. The Committee requests the Government to take the necessary measures to ensure that under the new industrial relations legislation, the choice of collective bargaining unit can be made only by the social partners themselves, since they are in the best position to decide the most appropriate bargaining level.

The Committee notes with regret the Government’s statement that while trade unions are free to operate at the KESC, a referendum to determine a collective bargaining agent cannot be held as the management of the KESC filed a writ petition before the High Court appealing the decision of the NIRC granting voting right to contract employees. The Committee requests the Government to take all necessary measures to ensure that the KESC workers and the trade union existing at the enterprise enjoy the rights afforded by the Convention in practice. It requests the Government to provide information on the situation with regard to the determination of a collective bargaining agent.