Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Pakistan (Ratification: 1952)

Autre commentaire sur C098

Observation

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The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011, referring to the similar issues as raised in its 2010 communication and in particular, the allegations of anti-union dismissals and acts of interference in trade union internal affairs by employers (intimidation, non-recognition and blacklisting of trade unions and its members), as well as denial of collective bargaining in export processing zones (EPZs). Noting that no observations have been provided by the Government thereon, the Committee recalls that it is the Government’s responsibility to ensure the application of the Convention in law and in practice. It therefore once again requests the Government to provide its observations on the ITUC allegations.

The Committee notes the comments submitted by the Pakistan Workers Confederation (PWC) in a communication dated 21 November 2011 referring to the legislative issues raised by the Committee below.

The Committee recalls that in its previous observation, it had noted that the Industrial Relations Act (IRA), 2008 (which was an interim legislation), had lapsed and 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. It had further noted that in line with the June 2010 decision of the High Court of Sindh (Karachi), the Industrial Relations Ordinance (IRO) of 1969 was back in force. In this respect, the Committee recalled that it had previously commented upon on a number of significant restrictions on the right to organize under the IRO 1969 and 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 such instruments would be in full conformity with the Convention.

The Committee notes that in its report, the Government indicates that the provinces were in the process of adopting their labour laws. The Government also indicates that the Federal Government will ensure through the Council of Common Interests that all provincial laws are in conformity with the Constitution and ratified ILO Conventions. The Committee notes the Punjab Industrial Relations Act (PIRA), 2010. The Committee regrets that this legislation appears to restrict the right of workers to organize by excluding several categories of workers from its scope of application, and restricting workers’ collective bargaining rights. The Committee will examine the PIRA 2010 in detail in the framework of the next reporting cycle. The Committee requests the Government to provide with its next report copies of all other provincial laws regulating industrial relations and trade union rights at the provincial level.

The Committee notes the November 2011 conclusions of the Committee on Freedom of Association (CFA) in Case No. 2799 (362nd Report) where the latter noted that a new Industrial Relations Ordinance (IRO) was promulgated by the President of Pakistan in July 2011 following tripartite consultations. The CFA also noted the Government’s indication that on 12 October 2011, the IRO was introduced in the National Assembly in order to make it into an Act of Parliament.

The Committee notes that the IRO 2011 regulates industrial relations and registration of trade unions and federation of trade unions in the Islamabad Capital Territory and in the establishments which cover more than one province (section 1(2)(3)). It regrets that most of its previous comments on the IRA 2008 have not been addressed by the promulgation of the IRO 2011.

Scope of application of the Convention.

IRO 2011. The Committee notes that by virtue of its section 1(3), the IRO maintains the same exclusion from its scope of application as previously existed under the IRO 2002 and IRA 2008 (agricultural workers, workers of charitable organizations, workers employed by the Pakistan Security Printing Corporation or the Security Papers Limited, etc), as examined in detail by the Committee in its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee recalls that the only categories of workers which can be excluded from the application of the Convention are the armed forces, the police and public servants engaged in the administration of the State. The Committee therefore requests the Government to take the necessary measures in order to amend the IRO so as to ensure that all workers, with the only possible exception of the armed forces, the police and public servants engaged in the administration of the State, enjoy the rights enshrined in the Convention.

With regard to the latter category of workers, the Committee notes that the IRO does not apply to workers employed in the administration of the State other than those employed as workmen (section 1(3)(b)). The Committee requests the Government to specify and provide examples of categories of workers employed in the administration of the State excluded from the scope of application of the IRO.

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) draft Rules, 2009, had been finalized in consultation with the stakeholders and will be submitted to the Cabinet for approval. 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, or a copy thereof if they have been adopted.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Banking sector. The Committee had previously requested the Government to amend section 27-B of the Banking Companies Ordinance of 1962, imposing sanctions of imprisonment and/or fines on the grounds of the exercise of trade union activities during office hours. In its report, the Government indicates that the Federal Cabinet at its meeting held on 1 May 2010 approved the repeal of this provision and that the final legislation is under preparation. 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.

Autonomous bodies and corporations. The Committee had previously requested the Government to amend section 2A of the Services Tribunal Act so as to ensure that 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. could redress their grievances in labour courts, labour appellate tribunals and the National Industrial Relations Commission (NIRC) in cases of unfair labour practices committed by the employer, and to provide copy of the amendment once adopted. The Committee notes the Government’s indication that section 2A of the Services Tribunal Act has been repealed and these workers can approach the labour courts in cases mentioned above. The Committee notes with satisfaction, from a copy of the text of the amendment available to it, that section 2A of the Act has been repealed.

Article 4. Collective bargaining. The Committee notes that it results from section 19(1) of the IRO that if a trade union is the only trade union at the enterprise, but it does not have at least one third of the employees as its members, no collective bargaining is possible at the given establishment. The Committee recalls that it had previously requested the Government to amend similar sections which existed under the IRO 2002 and IRA 2008. The Committee therefore 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 union, at least on behalf of its own members.

The Committee notes Chapter IV of the IRO concerning “participation of workers”. It notes, in particular, that under section 23, shop stewards are either nominated (by a collective bargaining agent) or elected (in the absence of a collective bargaining agent) in every undertaking employing over 25 workers to act as a link between the workers and the employer, to assist in the improvement of arrangements for the physical working conditions, etc. (section 24). Furthermore, section 25 provides for the works councils (bipartite bodies), which are established in every undertaking employing over 50 workers. Sections 25 lists the functions of such councils and further provides that the management shall not take any decision relating to working conditions, as specified in subsection (5), without the corresponding advice from workers’ representatives, which could be nominated (by a collective bargaining agent) or be elected by workers employed by the enterprise in question (in the absence of a collective bargaining agent). Finally, section 28 provides for the joint management boards to look after the fixation of job and piece-rate, planned regrouping or transfer of workers, laying down the principles of remuneration and introduction of remuneration methods, etc. The worker representatives in such boards are nominated by a collective bargaining agent if there are one or more trade unions at the enterprise, or are chosen from amongst workers of the relevant undertaking, if there is no collective bargaining agent. In the light of the abovementioned provision contained in section 19 of the IRO, the Committee considers that the position of a single trade union not enlisting over one third of workers employed at the relevant establishment or group of establishments (and therefore, as indicated above, not enjoying collective bargaining rights) may be undermined in practice by other worker representatives represented at the above mentioned bodies, the functions of which have an impact upon the regulation of terms and conditions of employment. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to ensure that the position of such trade unions is not undermined by the existence of other workers’ representatives.