Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

With reference to its observation, the Committee wishes to raise the following points.

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes that the definition of the term "industry" (section 2(xvii) of the Industrial Relations Ordinance (IRO) of 1969) excludes workers of charitable organizations "operating through public or private donations where ‘charitable purpose’ includes provision of education, medical care, emergency relief and other needs of the poor and indigent". Recalling that all workers, with only the exception of the members of the police and the armed forces, should enjoy the right to establish and join trade unions, the Committee requests the Government to indicate whether workers of charitable organizations enjoy the rights to establish and join organizations of their own choosing.

The Committee further notes section 7 of the IRO which appears to disqualify persons who have been convicted for embezzlement or misappropriation of funds or of a criminal offence of heinous nature within the meaning of the Pakistan Penal Code, such as theft, physical assault, murder, attempt to murder, etc., from becoming members or office bearers of a trade union. The Committee requests the Government to specify whether the persons mentioned in section 7 are indeed prohibited from becoming trade union members or whether this section is limited to prohibiting their membership on trade union executive boards.

(b) Right to establish organizations of their own choosing. The Committee notes that according to section 6(2)(a) of the IRO, only trade unions of workers engaged or employed in the same establishment or industry may be registered. Recalling that under Article 2 of the Convention workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces or industries but with the same trade (for example, plumbers), the Committee requests the Government to indicate whether occupational or professional trade unions may also be registered.

The Committee also notes that under section 6(2) of the IRO, the minimum membership requirement was raised from 20 to 25 per cent. The Committee recalls that although a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey, op. cit., paragraph 81). The Committee considers that the minimum membership requirement set at 25 per cent of the total number of workers employed at the respective establishment or industry is too high and requests the Government to take the necessary measures to lower it.

The Committee further notes that the IRO grants to the collective bargaining agent, i.e. the most representative trade union, rights which go beyond collective bargaining. According to section 20(13)(b), the collective bargaining agent has the exclusive right to represent all or any of the workers in any proceedings. Section 43(1) is to the same effect. By virtue of sections 20(13)(c) and 56(1), the collective bargaining agent has the further exclusive right to call a strike. The right to check-off facilities is also reserved for the collective bargaining agent under section 21. The Committee recalls in this respect that the 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 such as to influence unduly the choice of organization by workers. Therefore, the distinction between the most representative organization and other organizations should not have the effect of depriving the minority unions of the essential means for defending the occupational interests of their members (for instance, representing them in individual grievances) and for organizing their administration and activities, and formulating their programmes as provided by the Convention (see General Survey, op. cit., paragraph 98). The Committee therefore asks the Government to amend its legislation so as to extend the right to the check-off facilities and the right to call a strike to all trade unions, accompanied by any reasonable prerequisites. It further requests the Government to indicate whether minority unions may represent their members should they so desire, in respect of individual grievances.

The Committee further notes that trade union registration may be cancelled by the registrar on the grounds that a trade union has not been a contestant in a referendum for the determination of the collective bargaining agent (section 12(3)(ii)); or has not applied for determination of the collective bargaining agent under section 20(2) within two months of its registration as another union or promulgation of the Ordinance, whichever is earlier, provided there does not already exist a collective bargaining agent determined under section 20(11) in an establishment, or group of establishments or industry (section 12(3)(iii)); or has secured less than 15 per cent of polled votes per final list of voters, during a referendum for the determination of the collective bargaining agent (section 12(3)(iv)). The Committee considers that the provisions contained in section 12(3)(ii), (iii) and (iv), which allow dissolution of the trade union, prevent workers from maintaining their membership and pursuing their activities in the trade union of their own choosing and therefore are not in conformity with the Convention. The Committee therefore requests the Government to indicate the measures taken to repeal section 12(3)(ii), (iii) and (iv) of the IRO.

Article 3. (a) Right to elect representatives freely. The Committee notes that under section 39(7) of the IRO, the Labour Court 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. The Committee considers that such a sanction should only be possible where the strike prohibition in question is in conformity with the principle of freedom of association and should not be imposed if the action in question is peaceful. 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 further notes that the same sanction is also provided for in section 65(5) for committing an unfair labour practice broadly defined under section 64(1)(d) as an act of compelling or attempting to compel the employer to accept any demands by using, among others means, intimidation, coercion, pressure, threat, confinement or ouster from a place, dispossession, disconnection of telephone, water or power facilities. 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. Thus, 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). As the penalty provided under section 65(5) of the IRO could potentially run counter to the right of workers to elect their representatives freely since this section seems to cover a wide range of conduct -some of which is of a criminal nature, while other acts might not necessarily render the persons found guilty inappropriate for holding trade union office - the Committee requests the Government to indicate the manner in which section 64(1)(d) is to be interpreted and, more particularly, the wording "an act of compelling or attempting to compel the employer to accept any demands by using pressure and other such means". It further requests the Government to keep it informed of any practical application of this provision.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes section 19(1) of the IRO, which provides that accounts maintained by the collective bargaining agent with a membership of 5,000 or more are subject to an external audit by a firm of accountants appointed by the registrar. In cases when the collective bargaining agent has a membership of less than 5,000, the accounts are subject to audit in the manner "as may be prescribed". Furthermore, section 58(d) confers to the registrar a power to inspect the accounts and records of the registered trade unions, investigate or hold such inquiry as he or she deems fit. The Committee recalls that there is no infringement of the right of organizations to organize their administration if, for example, such supervision is limited to the obligation of submitting periodic 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 should not infringe the principles of freedom of association); similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. The Committee considers however that problems of compatibility with the Convention arise when the administrative authority has the power to audit the trade union’s accounts, to inspect their accounts and records and demand information at any time (see General Survey, op. cit., paragraph 125). The Committee therefore requests the Government to take the necessary measures to amend sections 19(1) and 58(d) so as to bring them into conformity with the Convention.

The Committee also notes section 20(14) of the IRO, concerning collective bargaining agents, which provides that "the registrar may authorize in writing an office bearer to perform all or any of his functions under the Ordinance and the rules made thereafter". Recalling that the authorities should exercise great restraint in relation to the intervention in the internal affairs of trade unions, the Committee requests the Government to clarify the meaning of this section and, in particular, whether it means that union officers may be restricted in their functions by the registrar.

Furthermore, the Committee notes that, according to section 43(2) and (3) of the IRO, "no party to an industrial dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings" and representation is possible in the proceedings before the Labour Court, or arbitrator, only with the permission of the Court 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, according to which workers’ and employer’s organizations shall have the right to organize their administration and activities freely. The Committee therefore requests the Government to amend section 43 so as to allow these organizations to be represented by lawyers in administrative or judicial proceeding should they so desire.

(c) Right to strike. The Committee notes that go-slow measures are forbidden under section 64(1)(f) and in the definition of "strike" provided for in section 2(xxviii). Go-slow is punishable by a fine which may extend up to 30,000 rupees and, in case of an office bearer, by disqualifying him or her from holding any office in any trade union during the term immediately following his or her term, in addition to any other punishment which the Court might award (section 65(4) and (5)). The Committee recalls that any work stoppage, however brief and limited, may generally be considered as a strike. It is of the opinion that restrictions as to the forms of strike action can only be justified if the action ceases to be peaceful and that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey, op. cit., paragraphs 173 and 177). The Committee requests the Government to amend its legislation so as to ensure that a peaceful go-slow action is not considered to be a prohibited unfair labour practice and that no sanction may be imposed for a participating in such action. 

The Committee further notes that according to section 31(3) of the IRO, where a strike lasts for more than 15 days, the federal or provincial Government may prohibit the strike at any time before the expiry of 30 days, "if it is satisfied that the continuance of such strike is causing serious hardship to the community or is prejudicial to the national interests" and shall prohibit the strike if it considers that the strike "is detrimental to the interests of the community at large". The Committee further notes that under section 31(4), following prohibition of the strike, the dispute is referred to the Commission or the Labour Court for compulsory arbitration. The Committee recalls in this respect that prohibitions or restrictions in respect of the right to strike should be limited to essential services or situations of an acute national crisis and considers that the wording in section 31 is too broad and vague to be limited to these cases. The Committee therefore requests the Government to amend its legislation so as to bring it into conformity with the Convention. 

The Committee notes that section 31(2) of the IRO authorizes "the party raising a dispute", either before or after the commencement of a strike, to make an application to the Labour Court for adjudication of the dispute. During this time, the Labour Court (or Appellate Court) may prohibit the continuation of the existing strike action (section 37(1)). The Committee recalls that a provision, which permits either party unilaterally to request the intervention of the public authorities for the settlement of a dispute through compulsory arbitration leading to a final award, effectively undermines the right to exercise strike action by making it possible to prohibit virtually all strikes or to end them quickly. Such 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 No. 87 (see General Survey, op. cit., paragraph 153). The Committee therefore requests the Government to indicate the measures taken to amend this provision so as to bring it into conformity with the Convention. 

The Committee further requests the Government to indicate whether workers’ organizations may exercise strike action in search of solutions to problems posed by major social and economic policy trends and whether workers may have recourse to sympathy strikes without penalty.

Articles 2 and 4. The Committee notes that under section 12(2), contravention of section 7, which prohibits a person who has been convicted for embezzlement or misappropriation of funds or of a criminal offence of heinous nature within the meaning of the Pakistan Penal Code, such as theft, physical assault, murder, attempt to murder, etc., from becoming a trade union office bearer, is a ground for cancellation of trade union registration by the Labour Court. The Committee 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 consider amending this provision so as to enable the union members to rectify the situation by electing a new trade union officer.

Articles 2 and 5. Right of organization to establish federations and confederations and to affiliate with international organizations. The Committee notes that, according to section 3(1)(d), every collective bargaining agent is required to affiliate with a federation at the national level registered with the National Industrial Relations Commission within two months after it is certified as collective bargaining agent or after the promulgation of the IRO. The Committee recalls in this respect that the question as to whether or not to form or join a federation is a matter to be determined solely by the workers and their organizations themselves. Moreover, the fact that Article 2 of the Convention provides that workers shall have the right to establish and join organizations of their own choosing implies for the organizations themselves the right to establish and join federations of their own choosing and when they desire. The Committee therefore requests the Government to amend section 3(1)(d) in order to ensure that workers’ organizations are allowed to determine themselves whether they wish to join a federation.

The Committee further notes that according to section 18(1), any ten or more trade unions, with at least one from each province, may constitute a federation or confederation at the national level. The Committee considers that the minimum requirement of ten trade unions, with at least one from each province, for establishment of a national federation is excessively high and requests the Government to indicate the measures taken or envisaged to lower this minimum or the obligation to at least one union from every province.