Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Pakistán (Ratificación : 1951)

The Committee notes the observations of the International Organisation of Employers (IOE) received on 27 November 2013 and 1 September 2015, which are of a general nature. It also notes the observations of the Employers Federation of Pakistan (EFP) included in the Government’s report. The Committee also notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2015 referring to new allegations concerning acts of violence and arrests against striking and protesting workers. The Committee requests the Government to provide its comments thereon. It further notes the Government’s reply to previous ITUC allegations.

Legislative issues. The Committee recalls that, in its previous comments, it had noted: (i) 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; (ii) the adoption of 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 covering more than one province (section 1(2) and (3) of the IRA), and did not address most of the Committee’s previous comments; and (iii) the adoption in 2010 of the Balochistan IRA (BIRA), the Khyber-Pakhtoonkhwa IRA (KPIRA), the Punjab IRA (PIRA), and the Sindh Industrial Relations (Revival and Amendment) Act, all of which raised similar issues as the IRA. The Committee notes the adoption of the Sindh Industrial Relations Act, 2013 (SIRA), which replaces the former industrial relations legislation in the province, and the amendment of the BIRA in 2015. It also notes the Government’s statement that the responsibility for the coordination of labour-related issues and the responsibility to ensure that provincial labour laws are drafted in accordance with international ratified Conventions, lie with the federal Government.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that the IRA 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 had further noted that section 1 of the BIRA, the KPIRA and the PIRA further exclude: (i) 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; (ii) members of the watch and ward, security or fire service staff of an oil refinery or an airport (and seaport – BIRA and KPIRA); (iii) 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; (iv) persons employed in the administration of the State except those employed as workmen by the railway and Pakistan Post; and (v) in the PIRA and the KPIRA, persons employed in an establishment or institution providing education or emergency services excluding those run on a commercial basis.

The Committee notes that section 1 of the new SIRA excludes all the abovementioned five categories of workers, except for the members of the watch and ward, security or fire service staff of a seaport. The Committee notes the Government’s indication that: (i) the IRA excludes security institutions and installations exclusively connected with the Armed Forces of Pakistan; (ii) the rationale behind excluding workers of institutions for treatment or care and of charitable organizations is that industrial action can put the lives of sick, infirm and destitute people in danger; but that, nonetheless, workers in these organizations have the right to form associations; (iii) public officials and employees of publicly owned undertakings, which are excluded from the purview of industrial relations legislation, get coverage under article 17 of the Constitution, which grants every citizen the right to form and join associations and is enforced by the Societies Registration Act, 1860 and the Co-operative Societies Act, 1925 (see for example the All Pakistan Clerks Association (APCA), the Muttahida Mahaz e Asatza (National Federation of Teachers), the All Pakistan Local Government Workers Federation, the Pakistan Airline Pilots’ Association (PALPA), and the Punjab Civil Secretariat Employees’ Association); (iv) according to the Government of Balochistan, necessary amendments are being proposed to ensure that under the BIRA only the armed forces and police are excluded in line with the provisions of the Convention; and (v) according to the Government of Sindh, the matter has been referred to the Law Department for opinion before proposing any amendments to the law.

The Committee notes that the BIRA, as amended in 2015, retains the exclusions enumerated above. The Committee considers that the exceptions relating to the armed forces and the police must be construed in a restrictive manner, and thus do not automatically apply to all employees who may carry a weapon in the course of their duties or to civilian personnel in the armed forces, fire service personnel, workers in private security firms and members of the security services of civil aviation companies, workers engaged in security printing services and members of the security or fire services of oil refineries, airports and seaports. The Committee emphasizes that these workers, without distinction whatsoever, should be granted the right to establish and join organizations of their own choosing – on the understanding that the right to strike is not absolute and may be restricted in exceptional circumstances, or even prohibited, for example in essential services in the strict sense of the term (services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). Welcoming the initiative of the Government of Sindh, the Committee requests the Government to ensure that it, as well as all other 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, and to provide information on any progress made in this respect. As regards public service, the Committee requests the Government to provide legislative and other information detailing how the abovementioned associations of public officials and employees of publicly owned undertakings benefit from the trade union rights enshrined in the Convention.

Managerial employees. The Committee had previously noted that, pursuant to sections 31(2) of the IRA and 17(2) of the BIRA, the KPIRA and the PIRA, 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; and that the definition of “worker” in section 2 of the IRA, the BIRA, the KPIRA and the PIRA, excludes any person who is employed mainly in a managerial or administrative capacity. The Committee notes that sections 2 and 17(2) of the new SIRA contain the same provisions. It also notes the Government’s indication that the industrial relations legislation considers any person responsible for the management, supervision and control of the establishment as an employer, and that managerial employees have all those rights of association that employers have under the laws. The Committee observes that the definition of “employer” in section 2 of the IRA, the BIRA, the KPIRA, the PIRA and the SIRA refers to any person responsible for the management, supervision and control of the establishment, including the proprietor, and includes every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof. With respect to workers performing functions that are of a managerial character, the Committee recalls that it is not necessarily incompatible with the requirements of Article 2 to deny such workers the right to belong to the same trade unions as other workers, provided that the persons concerned have the right to form or join their own organizations and that the categories of such managerial staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership and even, in small enterprises, prevent the establishment of trade unions. The Committee requests the Government to indicate, and to request the governments of the provinces to indicate, by what means it is ensured that these categories of staff are not defined too broadly.

Rights of workers and employers to establish and join organizations of their own choosing. The Committee had previously referred to the need to amend section 3(a) of the IRA and the BIRA, and 3(i) of the KPIRA and the PIRA, according to which no worker shall be entitled to be a member of more than one trade union. The Committee notes that the new SIRA contains the same provision in section 3(a). It also notes the Government’s indication that: (i) there is a restriction on double employment of a worker under the Factories Act, which means that a worker cannot be allowed to become member of more than one trade union; (ii) labour legislation does not recognize part-time work and there are only limited numbers of workers who are engaged in part-time work; (iii) the Government of Khyber Pakhtunkhwa has informed that the question of allowing a worker to be member of different trade unions based on the number of occupations will be raised in the Provincial Tripartite Consultation Forum; (iv) similarly, the Government of Sindh has informed that the Law Department is being consulted on the matter; and (v) the Government of Punjab indicates that the prohibition ensures that workers do not join more than one trade union in the same organization since they are also supposed to vote and this may cause ambiguity. The Committee observes that, while, as indicated by the Government, under section 48 of the Factories Act, adult workers shall not be allowed to work in any factory on any day on which they have already been working in any other factory, this does not seem to preclude that workers in the private and public sector or sectors may be engaged in more than one job in the same or different occupations. The Committee reiterates that these workers should be allowed to join the corresponding unions as full members (or at least, if they so wish, to join at the same time trade unions at the enterprise, branch and national levels) so as not to prejudice their right to establish and join organizations of their own choosing. Welcoming the initiatives of the Governments of Sindh and Khyber Pakhtunkhwa, the Committee requests the Government to ensure that it, as well as all governments of the provinces, take all measures to amend the legislation taking into account the abovementioned principle.

The Committee had previously noted that, pursuant to sections 8(2)(b) of the IRA and 6(2)(b) of the BIRA, the KPIRA and the PIRA, 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 that section 6(2)(b) of the SIRA contains the same provision. It also notes the Government’s indication that these provisions seek to avoid mushroom growth of ineffective trade unions, maintain effectiveness of collective bargaining agreements and discourage formation of pocket unions through employer support having no actual base, and in no way to prohibit workers from changing their union or forming a union for reasons of independence, effectiveness or ideological choice. The Committee reiterates that trade union unity imposed directly or indirectly by law is contrary to the Convention and notes the EFP’s statement that, while supporting the views expressed by the Government, this matter could be discussed between the social partners for any amendment if required. 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, while encouraging consultation with the social partners, in regard to such measures.

In its previous comment, the Committee had noted that sections 62(3) of the IRA, 25(3) of the KPIRA and the PIRA, and 30(3) of the BIRA, 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 that section 25(2) of the new SIRA contains the same provision. The Committee notes the Government’s indication that: (i) since 1969, Pakistan follows an industrial relations model where a collective bargaining agent, once determined, has the exclusive right to represent all workers at the workplace (both members and non-members), in order to exercise meaningful checks and balances for promotion of healthy trade unionism and avoid ambiguities arising out of overlapping; and (ii) the Government of Khyber Pakhtunkhwa has informed that the matter will be raised in the Provincial Tripartite Consultation Forum. The Committee reiterates that, while a provision requiring certification of a collective bargaining agent for a corresponding bargaining unit is not contrary to the Convention, the 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 and to freely determine the scope of unions created in relation to such unit, including the rights of minority unions (2012 General Survey on the fundamental Conventions, paragraph 225). Welcoming the initiative of the Government of Khyber Pakhtunkhwa, 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 had previously noted that certain rights were 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; and sections 24(20)(b) and (c), 27, 33, 34, 60(1) of the PIRA. The Committee notes that sections 24(20)(b) and (c), 27, 34, 35, 61(1) of the SIRA contain the same provisions. It also notes the Government’s indication that: (i) a collective bargaining agent is an elected body for the whole establishment; (ii) first priority is to include representatives of the collective bargaining agent union to ensure effective and meaningful representation of workers in the proceedings, since the collective bargaining agent is legally authorized to fight for the rights of all the workers of the concerned establishment; and (iii) as for the check-off facility, it is provided only with the consent of each individual worker under the industrial relations legislation. The Committee reiterates that the distinction between most representative and minority unions should be limited to the recognition of certain preferential rights (for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations); however, the distinction should not 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. The Committee requests the Government to take the necessary measures to amend the legislation so as to ensure full respect for the abovementioned principles, and to take the necessary measures to ensure that the governments of the provinces likewise amend the legislation.

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. The Committee notes with deep concern that, 18 years after its first observation on the issue, and after having stated on several occasions that legislative measures to repeal section 27-B were being taken, the Government now asserts that this provision is not in contravention with the Convention. In the view of the Committee, provisions of this type infringe the right of organizations to draw up their constitutions and to elect representatives in full freedom by preventing these organizations from determining whether other qualified persons (such as full-time union officers or pensioners) should be candidates for election and by creating a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. The Committee requests the Government to take the necessary measures to amend the legislation by making it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization, along the lines of section 8(d) of the IRA.

Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee had previously noted that sections 5(d) of the IRA, 15(e) of the BIRA, and 15(d) of the KPIRA and the PIRA, confer 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 that section 15(e) of the SIRA contains the same provisions. It also notes the Government’s indication that: (i) the Registrar exercises vigilance upon the affairs of a registered trade union and is empowered to inspect its accounts and records so that the unions work properly and the funds of unions are utilized transparently; (ii) the spirit of this non-coercive and rather facilitative measure is to prevent malpractices in the affairs of unions and ensure that union funds are not embezzled by any corrupt executive; and (iii) as for the holding of an inquiry in the affairs of a trade union, a Registrar does not act arbitrarily but only after receiving any complaint and/or if there are sufficient grounds to exercise such powers. The Committee welcomes the Government’s views concerning the limited purpose of the Registrar’s powers and the conditions for their use for the holding of an inquiry into trade union affairs. The Committee considers, however, that the wording of the relevant legislative provisions (“as he deems fit”) is excessively broad. The Committee requests the Government to take the necessary measures to amend the legislation by explicitly limiting the powers of financial supervision of the Registrar to the obligation of submitting annual financial reports and to verification in cases of serious grounds for believing that the actions of an organization are contrary to its rules or the law or of a complaint or call for an investigation of allegations of embezzlement from a significant number of workers. The Committee requests the Government to take the necessary steps to ensure that the governments of the provinces take such measures as well.

Article 4. Dissolution of organizations. The Committee had previously noted that the registration of a trade union can be cancelled by the Registrar for numerous reasons set out in sections 11(1)(a), (d), (e) and (f), 11(5), and 16(5) of the IRA; and section 12(1)(a) and (b), 12(3)(d), and 12(2) and (7) of the BIRA, the KPIRA and the PIRA, and 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 recalled 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, which can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution. The Committee notes that section 12 of the SIRA provides for grounds for cancellation by the Registrar, if so directed by the labour court. It also notes that the Government indicates that: (i) registration of a trade union is cancelled at federal level only on the order of the National Industrial Relations Commission (NIRC) (judicial body the decision of which can be appealed before its full bench (sections 54, 57 and 58 of the IRA)) or at provincial level by the labour courts; and (ii) the Registrar of Trade Unions, on its own, has no jurisdiction to cancel the trade union registration (section 11(2) of the IRA; 12(2) of the BIRA, the KPIRA, the PIRA and the SIRA). The Committee takes due note of this information and requests the Government to provide information on all occurrences of cancelled registration since January 2016 and the procedures followed for such occurrences.

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 that the Government provides no further information in this respect. The Committee urges 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 expects 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 welcomes the ILO project financed by the Directorate General for Trade of the European Commission to support GSP+ beneficiary countries to effectively implement international labour standards targeting four countries and notably Pakistan. The Committee trusts that the project will assist the Government in addressing the issues raised in this observation and the accompanying direct request.

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