Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

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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In its previous comment, in relation to the 2020 observations of the International Transport Workers’ Federation, the Committee had requested the Government to ensure that pilots can exercise their right to collective bargaining through organizations that genuinely represent their interests, that the freely concluded collective agreements at the national airline company should be binding on the parties and to promote co-operation and dialogue among social partners in the aviation industry. Noting with regret that the Government does not provide information on any measures taken in this respect the Committee is therefore bound to reiterate its previous requests. The Committee had further requested the Government to respond to the International Trade Union Confederation (ITUC) allegations concerning acts of anti-union discrimination and acts of interference in trade union internal affairs that dated back to 2012 and 2015. The Government indicates in this regard that it is working to provide the right to establish and join organizations to all workers and employers and no anti-union dismissal or act of interference in union’s internal affairs could be done by the employers. It further cites the provisions of the Balochistan Industrial Relations Act (BIRA) 2022 concerning the prohibition of anti-union discrimination and acts of interference by the employer. The Committee takes note of this information.

The Committee also notes that the Committee on Freedom of Association referred to it the legislative aspects of Case No. 2096 that relate to the Convention (Report No. 392, October 2020, paragraph 109). These matters are discussed below.

Articles 1-6 of the Convention. Scope of application of the Convention. The Committee notes that the Industrial Relations Act (IRA) 2012, the Khyber-Pakhtunkhwa Industrial Relations Act (KPIRA) 2010, the Punjab Industrial Relations Act (PIRA) 2010 and the Sindh Industrial Relations Act (SIRA) 2013, exclude numerous categories of workers (enumerated by the Committee in its 2022 comments on the application of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87)) from their scopes of application. The Government indicates in this regard that it is its obligation to extend the right to freedom of association to all sectors of the economy, formal and informal and further refers to the adoption of BIRA 2022, which scope of application covers “all workers and employers at all workplaces”(section 1(4)), with the exception of “the Police, Levies or any of the Defence Services of Pakistan or any services or installations exclusively connected with or incidental to armed forces of Pakistan and essential services”(section 1(5)). The Committee notes with interest the legislative change in Balochistan, which has the effect of bringing many previously excluded categories of workers within the scope of the BIRA, allowing them to enjoy their rights under the Convention. It notes however, that the BIRA still excludes “any service or installation” connected to the armed forces, as well as “essential services”; and recalls in this regard that civilian personnel in the armed forces as well as workers in essential services should enjoy the rights and guarantees enshrined in the Convention. In view of the foregoing, while welcoming the legislative change in Balochistan, the Committee once again urges the Government to ensure that the federal and provincial governments take the necessary measures to amend the legislation so as to ensure that all workers, with the only possible exception of the police, the armed forces and the public servants engaged in the administration of the State benefit from the rights and guarantees enshrined in the Convention. It requests the Government to provide information with respect to measures taken in this regard.

Export processing zones (EPZs). The Committee recalls that since the adoption by the federal Government of S.R.O 1004(1)/1982 dated 10 October 1982 relating to exemption of EPZs from various labour laws, the EPZs were exempted from the application of industrial relations legislation (clause 7 of the S.R.O, referring to the applicable law at the time, namely the Industrial Relation Ordinance of 1969). For many years, the Government kept reiterating that it was working on Export Processing Zones (Employment and Service Conditions) Rules, 2009, which would guarantee the right of EPZ workers to organize. The Government indicates in this regard that it has “partially” withdrawn S.R.O 1004(1)/1982 “except clause 7” through a notification dated 5 August 2021 and that now the only exemption to the application of labour laws in the EPZs is the Industrial Relations Ordinance. It adds that the 2009 Rules have been finalized and the workers in EPZs can enjoy the rights guaranteed under the Convention accordingly. The Committee notes however, that the Government does not provide a copy of the final version of 2009 Rules and therefore it is not in the position to evaluate whether and to what extent these Rules guarantee the rights enshrined in the Convention. In view of the foregoing, the Committee requests the Government to provide a copy of the final version of the Export Processing Zones (Employment and Service Conditions) Rules, 2009. It firmly hopes that the rights of EPZ workers under the convention, especially their right to collective bargaining, is duly guaranteed in law and in practice and requests the Government to provide information concerning any collective bargaining taking place in the EPZs and any collective agreements concluded there, including the names of the parties and the number of workers covered.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Banking sector. For the past 20 years, the Committee has repeatedly urged the Government to repeal section 27-B of the Banking Companies Ordinance, 1962, which imposes penal sanctions (up to 3 years imprisonment and/or fines) for the exercise of trade union activities during office hours. The Government indicates in this regard that after the promulgation of IRA 2012, almost all trade unions in banking sector are regulated under the federal law because of their trans-provincial character and despite section 27-B, unions in the banks are registered with the National Industrial Relations Commission (NIRC) and are properly working. It provides a list of unions in the banks all over the country. More precisely regarding section 27-B itself, the Government once again indicates that the Ministry is vigorously pursuing the matter with the concerned quarters for its removal. The Committee notes with deep concern that no progress is reported concerning the repealing of section 27-B, which punishes trade unionists for legitimate union activities and so constitutes a serious infringement of Article 1 of the Convention. The Committee therefore urges the Government once again to repeal section 27-B of the Banking Companies Ordinance, 1962, to enable workers in the banking sector to exercise trade union activities in conformity with Article 1 of the Convention.

Article 4 of the Convention. Collective bargaining. The Committee notes that pursuant to section 19 of the IRA and section 24(1) of the KPIRA, PIRA and SIRA, if a trade union is the only one in the establishment or group of establishments (or industry in the KPIRA, PIRA and SIRA) but it does not have at least one third of the employees as its members, no collective bargaining is possible at the given establishment or industry. In its previous comments, it had considered that these rules constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Government indicates in this regard that section 24(1) of BIRA 2022 has incorporated the recommendation of the Committee and reads “A trade union shall be permitted to act as a collective bargaining agent on behalf of its members”. It adds that the other laws would be amended accordingly in consultation with the social partners. While noting with interest the change introduced in BIRA, and welcoming the Government’s expression of intent to amend other federal and provincial laws likewise, the Committee expresses the firm hope that the legislation will be soon amended, with a view to ensuring that when there is no union representing the required percentage to be designated as the collective bargaining agent, collective bargaining rights are granted to the existing unions, jointly or separately, at least on behalf of their own members.

The Committee notes that the provisions on the determination of collective bargaining units give competence in this regard to the NIRC (section 62 of the IRA), the Labour Appellate Tribunal (section 25 of the KPIRA and PIRA) or the Registrar (section 25 of the BIRA and SIRA) and that previously certified unions can lose their status of collective bargaining agents as a result of a decision in which the parties played no part. The Committee notes with concern that BIRA 2022 reproduces this provision, and regrets that the Government does not report any measures taken to revise the law in this respect. The Committee therefore requests the Government to ensure that the necessary measures are taken by the federal and provincial governments to amend the legislation so that the social partners can participate in the determination or modification of the collective bargaining unit.

In its previous comments, the Committee had requested the Government to ensure that both federal and provincial governments guarantee that the existence of elected workers’ representatives directly elected to work councils is not used to undermine the position of the trade unions concerned or their representatives and to submit a copy of the Rules providing the notice and procedure for the election of workers’ representatives to work councils. The Committee notes with regret that the Government has not provided any information in this respect. It is therefore bound to reiterate its request.

Collective bargaining in practice. The Committee notes with deep regret, that the Government has not responded to its repeated requests to provide information on the number of collective agreements concluded and in force, the sectors concerned, and the number of workers covered, as well as on any measures taken to promote collective bargaining. The Committee expresses the firm hope that the Government will communicate the requested information in its next report.