Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Pakistan (Ratification: 1951)

Other comments on C087

Observation

Direct Request

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The Committee notes the observations of the Pakistan Workers Federation (PWF) received on 19 October 2017 referring mainly to legislative issues under examination by the Committee; as well as the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018 alleging a ban on a strike in the health sector, a refusal to grant demonstration permission to nurses and new incidents of police violence against protesting and striking workers in health, education, transports and tourism sectors and their arrest, detention and criminal prosecution. The Committee requests the Government to provide its comments thereon. It also notes the ITUC observations received on 1 September 2017 and the Government’s reply thereto.

In its previous comments the Committee had noted acts of violence against protesting and striking workers and their arrest alleged by the ITUC in 2015. The Committee notes with concern that the Government has not replied to these allegations and that, in its latest observations, the ITUC alleges new incidents of police violence, arrest, detention and prosecution of workers under terrorism charges for trade union activities. Noting the Government’s reply to the ITUC 2017 observations, the Committee deplores in particular the killing by law enforcement forces of two Pakistan International Airline (PIA) workers and injuring of several others during a protest against privatization plans concerning the company on 2 February 2016. It notes the Government’s indication that monetary compensation was paid to the families of the victims and to the injured workers. However, the Committee notes with regret that no information is provided with regard to any investigation into the violent conduct of the law enforcement forces or with regard to the alleged kidnapping of four union leaders and members in the early hours of 3 February 2016 in connection with the PIA labour dispute. Recalling that the ILO supervisory bodies have unceasingly stressed the interdependence between civil liberties and trade union rights, and emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations, the Committee urges the Government to provide its comments on all allegations of acts of violence against workers and their alleged arrest, detention and charging for trade union activities, and to ensure that investigations are conducted by the public authorities into the relevant 2015, 2017 and 2018 ITUC allegations and that sanctions are imposed against law enforcement forces.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee previously noted that the Industrial Relations Act (IRA) 2012, 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 Ordnance Factory 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 Balochistan Industrial Relations Act (BIRA) 2010, the Khyber-Pakhtoonkhwa Industrial Relations Act (KPIRA) 2010, and the Punjab Industrial Relations Act (PIRA) 2010, further excludes: (i) 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; (ii) members of the watch and ward, security or fire service staff of an oil refinery or an airport (and seaport – the 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 KPIRA, persons employed in an establishment or institution providing education or emergency services excluding those run on a commercial basis. The Committee also noted that section 1 of the Sindh Industrial Relations Act (SIRA) 2013, excludes all abovementioned five categories of workers, except for the members of the watch and ward, security or fire service staff of a seaport and that the BIRA as amended in 2015 retained the exclusions enumerated above. The Committee requested the Government to ensure that federal and provincial legislation guarantees the abovementioned categories of workers the right to establish and join organizations of their own choosing with the only exception of the armed forces and the police that must be construed in a restrictive manner. The Committee notes the Government’s indication that the restrictions set out in provincial acts are specific in nature and need to be imposed in the cases provided, any kind of industrial action may lead to serious security breach or irreparable loss to the public at large. The Committee notes with regret the Government’s indication that the proposed BIRA Bill 2017 retains the same exceptions. Furthermore, the Government indicates that persons employed in the administration of the State and performing their duties connected with the affairs of the armed forces or the police may not be given the right to agitate or go on strike. The Government indicates, however, that workers in private security firms are allowed to form unions and different categories of employees have formed unregistered unions/associations under KPIRA 2010 and are successfully defending their social, economic and occupational interests.

Noting that the Government expresses concern with regard to the consequences of industrial action in these services, the Committee wishes to point out the distinction between the right to establish and join a union, of which only the armed forces and the police can be deprived, and the right to strike, which may be restricted to certain categories of public servants, essential services in the strict sense of term, and situations of acute national or local crisis. The Committee further recalls that the exceptions to the right to establish and join a union that relate to the armed forces and the police 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. The Committee once again recalls that the right to strike is not absolute and may be restricted in exceptional circumstances, or even prohibited, for example in essential services the interruption of which would endanger the life, personal safety or health of the whole of part of the population. In view of the above, the Committee once again requests the Government to ensure that the federal as well as all provincial governments 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 detailed information on any progress made in this respect. As regards public service, the Committee again requests the Government to provide legislative and other information detailing how the associations of public officials and employees of publicly owned undertakings benefit from the trade union rights enshrined in the Convention.

Managerial employees. The Committee previously noted that, pursuant to sections 31(2) of the IRA and 17(2) of the BIRA, KPIRA, SIRA and 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. In this respect, the Committee notes with concern the observation of the PWF alleging that as a result of these provisions, a workman on promotion has to leave the trade union and become deprived of the benefit of collective bargaining and collective agreement and so is unable to pursue efforts to improve standard of living and so most of the workers are compelled to live around the poverty line. The Committee recalls in this respect that it has always considered that senior managerial staff may be denied the right to join the same organizations as other workers, provided that they have the right to form their own organizations to defend their interests. It notes the Government’s indication that managerial workers, who are assimilated to employers under the law, have the inalienable right to form and join the associations of their choice but subject to reasonable limitations. The Committee notes however that, while under the IRA, BIRA, KPIRA, PIRA and SIRA, workmen’s trade unions can get recognition as collective bargaining agents, undertake collective bargaining, raise an industrial dispute, give a strike notice and have access to conciliation and voluntary arbitration proceedings, the same does not seem to apply to managerial workers’ associations. The Committee therefore requests the Government to ensure that the federal and provincial acts are revised with a view to ensuring that senior managerial workers can establish and join organizations that can appropriately defend their occupational interests.

The Committee further notes that section 2 of the IRA, BIRA, KPIRA, PIRA and SIRA define as an employer any person responsible for the management, supervision and control of the establishment, and that the same provisions define “worker” and “workman” as a person, employed in an establishment or industry for hire or reward, including employment as a supervisor or as an apprentice, but not falling within the definition of employer. The definition of worker also expressly excludes any person who is employed mainly in a managerial or administrative capacity. The Committee notes the Government’s indication that the Government of Sindh intends to bring the issue of managerial workers before the Provincial Tripartite Consultative Committees (PTCC) for further clarification. The Committee recalls in this respect that it has always considered that where managerial staff are denied the right to join the same organizations as the other workers, the category of executive and managerial staff should not be so broadly defined as to weaken the organizations of other workers by depriving them of a substantial proportion of their actual or potential membership. Noting that according to section 2 of the abovementioned federal and provincial Industrial Relations Acts, persons employed mainly in an administrative capacity and all those responsible for the supervision and control of the establishment are not considered workmen, and that in departments of Federal Government, for the purpose of distinction from the category of “workers” or “workmen”, officers and employees who belong to secretarial, supervisory or agency staff shall be deemed to fall within the category of employers, the Committee considers that the categories of staff disqualified from participation in workmen’s trade unions may be too broadly defined. The Committee therefore requests the Government to review the application of the legislation with the social partners, with a view to ensuring, including through legislative means, that workers’ organizations are not deprived of a substantial proportion of their actual or potential membership due to the current legal definitions of “workmen” and “employers”. The Committee requests the Government to provide information on the measures taken in this regard.

Rights of workers and employers to establish and join organizations of their own choosing. The Committee had previously referred to the need to amend sections 3(a) of the IRA, the SIRA and the BIRA, 3(i) of the KPIRA and 3(ii) of the PIRA according to which, no worker shall be entitled to be a member of more than one trade union, so as to ensure that workers in the public and private sectors who are engaged in more than one job are 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. The Committee notes that the Government once again refers to the restriction on “double employment” of a worker under section 48 of the Factories Act, which means that a worker cannot be allowed to become a member of more than one trade union, and further adds that the proposed BIRA Bill 2017, also prohibits “double employment” and establishes that in order to become a trade union member, the worker should be employed at the establishment. The Government considers that membership in more than one trade union is not justified as in the same establishment it would result in overlapping memberships in more than one rival trade union. Furthermore, the Committee notes the Government’s indication that in accordance with the KPIRA, members and office-bearers of unions can also become office-bearers in federations and confederations, and that pursuant to portion of Form-C of the Khyber Pakhtunkhwa Industrial Relations Rules, 1974, while the same person cannot become a member of more than one union in the same establishment/group of establishments/industry to which the trade union relates, this is possible if the establishments are different.

The Committee observed in its previous comment 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 occupation. In addition, the Committee once again recalls that workers who are engaged in more than one job should be allowed to join the corresponding union of their choice, that is, more than one union, and that in any event workers should be able, if they so wish, to join trade unions at the national and branch level as well as the enterprise level at the same time, and draws the Government’s attention to the fact that compliance with this principle will not entail overlapping memberships. The Committee notes that pursuant to the Government’s indication, in Khyber Pakhtunkhwa the law and practice allow the workers such choice. The Committee therefore requests the Government to take the necessary measures to ensure that federal and provincial legislation is amended so as to guarantee that workers who are engaged in more than one job are allowed to join the corresponding union of their choice, that is, more than one union, and that in any event, workers can, if they so wish, join trade unions at the national and branch level as well as the enterprise level at the same time and to provide information on the measures taken in this regard.

Rights and advantages of the most representative trade unions. The Committee 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, that is to say, 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 and 68(1) of the BIRA; sections 24(13)(b) and (c), 28, 37, 38 and 64(1) of the KPIRA; sections 24(20)(b) and (c), 27, 33, 34 and 60(1) of the PIRA and sections 24(20)(b) and (c), 27, 34, 35 and 61(1) of the SIRA. It notes with interest the Government’s indication that it will try to devise a mechanism in consultation with the stakeholders to solve the issues related to the provision of check-off and representation of workers in case of individual grievances. The Committee also notes that the Government considers that recognizing the right to declare strike and bargain collectively for unions other than the CBA may lead to multiplicity of fora and different charters of demands, resulting in different rights for different workers of the same establishment. It finally indicates that the Governments of Sindh and Blochistan will discuss the observations of the Committee in the PTCC for final decision. 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 (including giving notice of and declaring a strike), as provided for in the Convention. Welcoming the Government’s declared intention to address the lack of right of representation and check-off facilities for minority unions, the Committee urges the Government to take the necessary measures to amend the legislation as soon as possible, 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, and to inform it of the developments in this regard.

In its previous comments, the Committee had 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 the Government’s indication that in a tripartite meeting held in August 2018 at the Ministry of Overseas Pakistanis and Human Resources Development, it was agreed that the Ministry will submit a proposal for amendment of section 27-B to the Government. The Committee however notes with concern that pursuant to the Government’s report, in the above-cited tripartite meeting it was decided to enable dismissed workers to work in unions for so long as their cases are not finalized in the court. The Committee considers, however, that if the Ministry’s amendment proposal does not go further than the decision adopted in the tripartite meeting, it will fall short of bringing the law into conformity with the Convention. In the view of the Committee, provisions like section 27-B infringe the right of organizations to draw up their constitutions and to elect representatives in full freedom by preventing qualified persons (such as full-time union officers or pensioners) from being elected 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 urges 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.

Article 3. Right to elect representatives freely. The Committee had previously noted that the IRA and the provincial industrial relations acts contain several sections concerning disqualification from being elected to or holding a trade union office on the following grounds: conviction or prison sentence for two years or more for offence involving moral turpitude under the Pakistan Penal Code, unless a period of five years has elapsed after the completion of the sentence (section 18 of IRA); conviction for contraventions to the Act (section 7 of the KPIRA); conviction for heinous offence under the Pakistan Penal Code (section 7 of the BIRA, KPIRA, PIRA and SIRA); violation of National Industrial Relations Commission (NIRC) or Labour Court order to stop a strike (section 44(10) of the IRA, section 64(7) of the BIRA, 60(7) of the KPIRA, 56(7) of the PIRA and 57(7) of the SIRA) and conviction for embezzlement or misappropriation of funds (sections 7 and 77 of the BIRA, 7 and 69 of the PIRA and 7 and 70 of the SIRA). The Committee notes the Government’s indication that: (i) the grounds for disqualification on conviction to prison sentence as stipulated in the IRA are reasonable to protect discipline and good governance at the enterprise level and the offences of theft, embezzlement and moral turpitude seriously damage the relationship of trust and mutual respect between employers and workers and the ability to represent workers; (ii) section 56 of the PIRA highlights the powers of the appellate court to deal with cases of illegal strikes and to pass certain orders against the violators. These powers allow the creation of checks and balances for the promotion of healthy trade unionism; (iii) the grounds for disqualification under the PIRA only cover the crucial minimum requirements for a certain specified period. The Government further reiterates that the Government of Sindh plans to place the matter before its Provincial Tripartite Consultative Committee (PTCC) and indicates that the Government of Khyber Pakhtunkhwa will do likewise. It further indicates that the Government of Balochistan has proposed to omit reference to section 77 in section 7 of the BIRA and the procedure in case of illegal strikes or lockout will be finalized after consultation with social partners. The Committee once again emphasizes that legislation which establishes excessively broad ineligibility criteria such as by means of a long list, including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention. In this regard, the Committee considers that not every contravention of industrial relations legislation, nor every violation of a judicial order to stop a strike, nor every conviction for the range of criminal offences alluded to necessarily constitute acts of such a nature as to be prejudicial to the performance of trade union duties. In light of the above, the Committee welcomes the initiatives of the Governments of Khyber Pakhtunkhwa and Sindh to refer the Committee’s comments to the PTCC and expects that these consultations will produce concrete results in the near future. It notes however that neither the Federal Government nor the Government of Punjab seem to envisage any legislative amendment in relation to this matter and that the amendments proposed by the Government of Balochistan do not adequately limit the grounds for disqualification from being elected to or holding union office. The Committee therefore urges the Government to amend the federal legislation so as to make the grounds for disqualification more restrictive and to take the necessary measures to ensure that the governments of the provinces likewise amend their legislation.

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 SIRA, and 15(d) of the KPIRA and 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. It also notes that the Government reiterates that these legal provisions aim at making the system more accountable and transparent. With regard to provinces, the Government indicates that the purpose of inspection powers of the registrar under the PIRA is limited to unveiling of certain crucial facts and figures and that under the SIRA, the power to check the accounts aims at ensuring that expenditures have been made properly and, finally, that the Government of Khyber Pakhtunkhwa commits that the financial powers of the registrar under the KPIRA may be minimized to solving the issues of misappropriation and embezzlement. While noting the federal and provincial governments’ views concerning the limited purposes of the registrar’s powers, the Committee considers 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 in cases of a complaint or call for an investigation of allegations of embezzlement from a significant number of workers (see 2012 General Survey on the fundamental Conventions, paragraph 109). 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 had also noted that section 12 of the SIRA provides for grounds for cancellation by the registrar, if so directed by the labour court, and had 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 had further noted the Government’s indications 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 (sections 11(2) of the IRA; 12(2) of the BIRA, the KPIRA, the PIRA and the SIRA). The Committee had requested the Government to provide information on all occurrences of cancelled registration since January 2016 and the procedures followed for such occurrences. It notes in this regard the Government’s indication that, in Punjab, 66 registrations were cancelled in 2016, and five appeals were made before the labour court against these cancellations, while in 2017, registrations of 73 unions were cancelled and nine appeals were made. The Government further indicates that in Khyber Pakhtunkhwa eight registrations were cancelled pursuant to section 12(3)(a) of the KPIRA that provides for the cancellation of registration of a union that has dissolved itself or has ceased to exist. Taking due note of this information, the Committee requests the Government to provide information on occurrences of cancelled registration in all provinces as well as at the federal level since January 2016, and the procedures followed for such cases, including the results of all appeals that were taken.

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 the Government’s indication in its report on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that the proposed rules were shared with the investors of the EPZ Authority (EPZA) as any change in the incentive package under which an investment/scheme has been sanctioned in a zone shall not be made except where such change is more advantageous to the investors and is also accepted by them. The Government adds that any change in the EPZA law would involve formal endorsement of the Board of the EPZA followed by the approval of the Parliament and the matter is still being discussed at a higher level in order to carve out a strategy to amend the law. Recalling that for the past 13 years, the Government has been indicating that it is in the process of drawing up rules that would grant the right to organize to EPZ workers, the Committee deeply regrets the lack of progress in this regard. Recalling that workers in the EPZs should benefit from the rights guaranteed under the Convention, the Committee urges the Government to take the necessary steps to ensure that the new Rules are adopted without further delay so as to guarantee the right to organize in EPZs. It requests the Government to provide a copy thereof once 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 is raising other points in a request addressed directly to the Government.