Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

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

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2011. It notes, in particular, that the Conference Committee requested the Government to provide to the Committee of Experts, for its examination this year, detailed information on the progress made in bringing the national legislation and practice into full conformity with freedom of association principles as well as all provincial laws relevant to the application of the Convention. The Committee notes with regret that the Government’s report has not been received.

Comments of trade union organizations.

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 4 August 2011 alleging acts of violence (attacks, kidnapping, torture, killings) against trade unionists. The Committee recalls that in its previous comments, it had noted the 2010 comments submitted by the All Pakistan Federation of United Trade Unions (APFUTU) regarding the difficulties in registering trade unions for the industries established in the City of Sialkot, as well as the comments submitted by the ITUC alleging acts of violence against protesters, night-time raids, arrests and harassment of trade union leaders and members, as well as other violations of the Convention. The Committee noted in particular the ITUC’s comments concerning the requirement that any gathering of more than four people be subject to police authorization and its impact on trade union activities, as well as the denial of the right to strike to workers in export processing zones (EPZs) and the possibility to impose penalties of imprisonment against illegal strikes, go-slows and picketing activities. The Committee regrets that the Government provided no observations thereon. It therefore once again recalls that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations, and that workers have the right to participate in peaceful demonstrations to defend their occupational interests. The Committee urges the Government to conduct an independent investigation into all of the abovementioned serious allegations of violence against trade unionists and to report on the outcome and the measure taken to punish those found responsible.

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.

Legislative issues

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. In this respect, the Committee 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 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 to 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) and (3)). It notes with regret that most of its previous comments on the IRA, 2008, have not been addressed by the promulgation of the IRO, 2011.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that the IRO 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 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 Pakistan International Airlines Corporation (PIAC) or drawing wages in pay group not lower than Group V in the PIAC establishment (section 1(3)(c));
-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));
-agricultural workers (section 1(3) read together with section 2(x) and (xvii));
-workers of charitable organizations (section 1(3) read together with section 2(x) and (xvii)).

The Committee recalls that by virtue of Article 2 of the Convention, workers, without distinction whatsoever shall have the right to establish and join organizations of their own choosing. The Committee requests the Government to 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.

Managerial employees. The Committee also notes that, pursuant to section 31(2) of the IRO, 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. The Committee considers that such restriction is compatible with freedom of association provided that two conditions are met: first, that the persons concerned have the right to establish their own organizations to defend their interests; and second, that the category of managerial staff is not so broadly defined as to weaken the organization of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their actual or potential membership. The Committee requests the Government to take the necessary measures to ensure that the abovementioned provision is not applied in practice in a manner contrary to the principle above.

Rights of workers and employers to establish and join organizations of their own choosing. The Committee notes that section 8(2)(a) of the IRO provides that only trade unions of workers engaged or employed in the same industry may be registered. The Committee recalls that such restrictions may be applied to first level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers or employers concerned (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 84). The Committee requests the Government to take the necessary measures to ensure that trade unions affiliating workers of different professions and/or enterprises could establish inter-professional organizations of workers and affiliate with federations and confederation of their own choosing.

The Committee further notes that section 62(3) of the IRO provides 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 considers that while a provision requiring certification of a collective bargaining agent for a corresponding bargaining unit is not contrary to the Convention, 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. The Committee therefore requests the Government to take the necessary measures to amend this provision so as to bring it into conformity with the Convention.

The Committee notes that pursuant to section 8(2)(b) of the IRO, 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. Considering that this minimum membership requirement is too high, the Committee requests the Government to ensure that it is reduced to a reasonable level 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.

The Committee notes that under the new IRO, the right to represent workers in any proceedings, the right to check-off facilities and the right to call a strike are granted only to collective bargaining agents, i.e. the most representative trade unions (sections 20(b) and (c), 22, 33, 35 and 65(1)). The Committee considers that workers’ freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the granting of privileges extending beyond that of priority in representation for such purposes as collective bargaining or consultation by the Government or for the purpose of nominating delegations to international bodies. In other words, this distinction should not have the effect of unduly influencing the choice of organization by workers and of depriving those trade unions that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members. The Committee therefore requests the Government to take the necessary measures to amend the IRO so as to ensure that the abovementioned rights are extended to all trade unions.

Article 3. Right to elect representatives freely. The Committee notes that the IRO contains several sections concerning disqualification from holding a trade union office. First, under section 18, a person who has been convicted and sentenced to imprisonment for two years or more for an offence involving moral turpitude under the Pakistan Penal Code shall be disqualified from being elected as, or from being an officer of a trade union, unless a period of five years has elapsed after the completion of the sentence. The Committee recalls in this respect that conviction for an act, the nature of which is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office (see General Survey, op. cit., paragraph 120). Second, under section 44(10), the National Industrial Relations Commission (“Commission”) has the power to disqualify a trade union office bearer from holding any trade union office for the unexpired term of his or her office and for the term immediately following, for violation of its order to stop a strike (this point is further discussed below). Third, the same sanction is also provided for in section 67(5) of the IRO for committing an unfair labour practice under section 32(1)(a)–(c) and (e). The Committee notes that section 32 lists a wide range of actions, which include acts by a worker to persuade other workers to join or refrain from joining a trade union during working hours; induce any person to refrain from becoming members or officers of a trade union by conferring or offering to confer any advantage for such persons; commence, continue, instigate or incite others to take part in, or expend or supply money to, or otherwise act in furtherance or support of, an illegal strike or a work slowdown, etc. The Committee recalls that legislation which establishes excessively broad ineligibility criteria 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 (see General Survey, op. cit., paragraph 120). In light of the above, the Committee requests the Government to take the necessary measures to amend the IRO so as to bring it into accordance with the principles above.

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, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting, as candidates, persons who have been previously employed in the banking company. The Committee had noted the Government’s statement that a bill to repeal section 27-B of the Banking Companies Ordinance of 1962 had been submitted to the Senate. The Committee notes the Government’s statement to the Conference Committee 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.

Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that section 8 of the IRO regulates in detail the internal functioning of trade unions. Specifically, its subsection 1(j) provides that the constitution of a union should provide for a term for which a trade union officer may be elected and specifies that it should not exceed two years; and subsection 1(l) provides for the frequency of meetings of a union’s executive and general body. The Committee further notes that under section 48(2) of the IRO, the Commission has a power to order a person who has been expelled from a trade union to be restored to its membership or to order that he or she be paid out of the union funds such sum by way of compensation or damages as the Commission thinks just. The Committee considers that all of these matters should be left for an organization to decide and regulate. It therefore requests the Government to take the necessary measures in order to amend the IRO in this respect.

The Committee notes that section 5(d) of the IRO confers 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 considers that problems of compatibility with the Convention arise when the administrative authority has the power to audit the trade union’s accounts, to inspect such accounts and records and demand information at any time (see General Survey, op. cit., paragraph 126). The Committee requests the Government to take the necessary measures in order to ensure that the supervision of internal administration of organizations is limited to the obligation of submitting annual financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law, which itself should not infringe the principles of freedom of association.

The Committee notes that section 65(2) and (3) of the IRO provides that “no party to an industrial dispute should be entitled to be represented by a legal practitioner in any conciliation proceedings under this Ordinance” and that representation is possible in the proceedings before the Commission, or arbitrator, only with the permission of the Commission or the arbitrator, as the case may be. The Committee considers that legislation which prevents workers’ and/or employers’ organizations from using the services of experts such as lawyers and agents to represent them in administrative or judicial proceedings is not in conformity with Article 3 of the Convention. It therefore requests the Government to take the necessary measures to amend the IRO so as to ensure that workers and employers’ organizations are allowed to be represented by lawyers in administrative or judicial proceedings should they so desire.

Right to strike. Types of strike action. The Committee notes that under section 32(1)(e) of the IRO, a go-slow appears to be an unfair labour practice. The Committee is of the opinion that restrictions as to the forms of strike action (including go-slow) can only be justified if the action ceases to be peaceful (see General Survey, op. cit., paragraph 173). The Committee therefore requests the Government to take the necessary measures in order to amend the IRO so as to ensure that a peaceful work slowdown is not considered to be a prohibited unfair labour practice.

Prohibition of strikes. The Committee notes that section 42(3) of the IRO provides that, where a strike lasts for more than 30 days, the Government may, by an order, prohibit such a strike, provided that a strike can also be prohibited at any time before the expiry of 30 days if it “is satisfied that the continuance of such a strike is causing serious hardship to the community or is prejudicial to the national interests”. The Committee further notes that under section 45 of the IRO, the Government can prohibit a strike related to an industrial dispute of national importance (subsection (1)(a)), or in respect of any public utility services (subsection (1)(b)), at any time before or after its commencement. A strike carried out in contravention of an order made under this section, as well as section 42 noted above, is deemed illegal by virtue of section 43(1)(c). The Committee notes that Schedule I, setting out the list of public utility services includes services such as oil production, postal services, railways and airways. The Committee recalls that the prohibition of strikes can only be justified: (1) in the public services only for public servants exercising authority in the name of the State; (2) in the event of an acute national or local emergency; or (3) in the essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee considers that the wording of sections 42(3) and 45(1) (a) is too broad and vague to be limited to such cases and that the abovementioned services listed in Schedule I cannot be considered essential in the strict sense of the term. The Committee requests the Government to take the necessary measures in order to amend the IRO so as to ensure that any prohibition or restriction imposed on the right to strike is in conformity with the principles above.

Compulsory arbitration. The Committee notes that following a prohibition of the strike by the Government pursuant to the above-noted sections 42 and 45 of the IRO, the dispute is referred to the Commission for adjudication. The Committee further notes that section 42(2) of the IRO authorizes a “party raising a dispute”, either before or after the commencement of a strike, to apply to the Commission for adjudication of the dispute. Pending adjudication, the Commission can prohibit the continuation of the existing strike action (section 61). The Committee recalls that a provision, which permits public authorities or either party to unilaterally request the settlement of a dispute through compulsory arbitration leading to a final award, effectively undermines the right to strike by making it possible to prohibit virtually all strikes or to end them quickly. Such a system seriously limits the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and to formulate their programmes and is not compatible with Article 3 of the Convention (see General Survey, op. cit., paragraph 153). The Committee therefore requests the Government to take the necessary measures to amend the IRO so as to ensure that recourse to compulsory arbitration is possible only in cases where the exercise of the strike can be restricted or even prohibited or at the request of both parties to the dispute.

Sanctions. The Committee notes that under section 32(1)(e) of the IRO, commencing, continuing, instigating others to take part in, or expending or supplying money to, or otherwise acting in furtherance or support of an illegal strike or a go-slow is an unfair labour practice punishable by a fine of up to 30,000 rupees and/or imprisonment which may extend to 30 days. When the person convicted of such an offence is a trade union office bearer, he or she can be disqualified from holding a trade union office for the unexpired and immediately following terms, in addition to any other punishment which the court might award (section 67(4) and (5)). The Committee further notes that section 44(10) of the IRO provides for the following sanctions for contravening a Commission’s order to call off a strike: dismissal of the striking workers; cancellation of the registration of a trade union; and debarring of trade union officers from holding a trade union office for the unexpired and immediately following terms. The Committee emphasizes that sanctions for strike action can be imposed only if the prohibitions or restrictions on the right to strike are in conformity with the principles of freedom of association. The Committee further considers that the use of extremely serious measures, such as dismissal of workers and cancellation of trade union registration implies a grave risk of abuse and constitutes a violation of freedom of association. With regard to penal sanctions, the Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and on no account should measures of imprisonment be imposed. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. The Committee requests the Government to take the necessary measures in order to amend its legislation so as to bring it into conformity with the principles above.

Article 4. Dissolution of organizations. The Committee notes with concern the numerous cases where a registration of union may be cancelled under the IRO. In particular, the Committee notes that the registration of a trade union shall be cancelled if the Commission so directs, following a complaint made by the Registrar that the trade union has contravened the provisions of the Ordinance or its constitution, or failed to submit its annual returns to the Registrar, or obtained less than 10 percent of total votes polled in an election for determination of a collective bargaining agent (section 11(1)(a), (d), (e), (f) and (g) of the IRO). The Committee also notes that under section 16(5) of the IRO, if the statement of expenditure of a union is found incorrect following an audit of annual return, the Registrar shall initiate before the Commission the proceeding for the cancellation of the union registration. The Committee further notes that under section 44(10) of the IRO, the registration of a trade union can be cancelled for contravening the Commission’s order to call off a strike. Furthermore, the Committee notes that under section 11(5) of the IRO, if a person who is disqualified under section 18 a person who has been convicted and sentenced to imprisonment for two years or more for committing an offence involving moral turpitude under the Pakistan Penal Code) is elected to be an officer of a registered trade union, the registration of such a union shall be cancelled if the Commission so directs. The Committee recalls that the cancellation of a registration of an organization and its dissolution in view of its serious and far-reaching consequences is a measure which should occur only in extremely serious cases. With regard to section 11(5), the Committee furthermore considers that, although the conviction for an act, the nature of which calls into question the integrity of the person concerned may represent grounds for disqualification for trade union office, that should not constitute a reason for cancellation of trade union registration, which is tantamount to dissolution of the union. To deprive workers of their trade union organization because of illegal activities previously carried out by one of its leaders is, in the Committee’s opinion, a disproportionate sanction which violates the rights of workers to organize under Article 2 of the Convention. The Committee therefore requests the Government to take the necessary measures to amend the IRO so as to bring it into conformity with the Convention taking into account the principles above.

The Committee notes that under the IRO, the Commissions’ decision directing the Registrar to cancel the registration of a union cannot be appealed in court (section 59 of the IRO). The Committee recalls that cancellation of a trade unions’ registration should only be possible through judicial channels and that measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association. The Committee further emphasizes that judges should be able to deal with the substance of a case to enable them to decide whether or not the measure of dissolution would not be in violation of the rights accorded to occupational organizations by Convention No. 87. The Committee requests the Government to take the necessary measures to amend the IRO so as to ensure that any decision to cancel trade union registration can be appealed in court.

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 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.

The Committee expects that all necessary measures will be taken rapidly to bring its national legislation into full conformity with the Convention and requests the Government to provide information on all steps taken or envisaged in this respect. It further 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 recalls that it had previously requested the Government to indicate whether Presidential Ordinance No. IV of 1999, which amended the Anti Terrorism Act by penalizing illegal strikes or slowdowns with up to seven years of imprisonment, had been repealed. The Committee notes the Government’s statement in the Conference Committee that the Ordinance is no longer in force.

The Committee notes the Punjab Industrial Relations Act (PIRA), 2010. The Committee regrets that this legislation appears to restrict the rights of workers to organize by excluding several categories of workers from its scope of application, and restricting the rights of workers to establish organizations of their own choosing without previous authorization and their right to strike. The Committee will examine the PIRA, 2010, in detail in the framework of the next reporting cycle.

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