Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments made by the Pakistan Workers’ Federation (PWF) and the International Trade Union Confederation (ITUC) on the application of the Convention in law and in practice in communications dated 2 and 26 August 2009 respectively. The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2096, 2399, 2520 (see 353rd Report) and 2229 (see 354th Report), dealing with the same issues.

The Committee recalls that for several years it has been commenting on important restrictions to the right to organize of certain categories of workers and to the right of trade unions to formulate their programmes, elect their officers and carry out their activities without interference by the public authorities. At its 2008 session, the Committee took note of the Industrial Relations Act (IRA), adopted in November 2008, which amended the Industrial Relations Ordinance (IRO) 2002. It further noted that the IRA was an interim law due to lapse on 30 April 2010. The Committee noted that during this period, a tripartite conference would be held to draft new legislation in consultation with all stakeholders.

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2009. It further notes that the Conference Committee expressed the firm hope that new legislation would be adopted in the very near future with the full consultation of the social partners concerned and that it would guarantee the right of all workers, without distinction whatsoever, to form and join organization to defend their social and occupational interests and to organize their activities and elect their officers freely and without interference.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee recalls that in its previous comments it had requested the Government to ensure full freedom of association at the Karachi Electric Supply Company (KESC) and the Pakistan International Airlines Corporation (PIAC). The Committee notes with interest the Government’s statement that trade union activities were restored at both undertakings. With regard to the PIAC, the Government indicated that Chief Executive Order No. 6 was repealed by Parliament.

The Committee notes that the IRA 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 Ordnance Factory maintained by the federal Government (section 1(3)(a));

–      workers employed in the administration of the State (section 1(3)(b));

–      members of the security staff of PIAC (section 1(3)(b));

–      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));

–      members of the watch and ward, security or fire service staff of an oil refinery, an airport or a seaport (section 1(3)(f));

–      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 (section 1(3)(g));

–      agricultural workers (section 1(3) read together with 2(ix) and (xiv)); and

–      workers of charitable organizations (section 1(3) read together with 2(ix) and (xiv)).

The Committee requests the Government to take the necessary measures in order to ensure that the new legislation guarantees the abovementioned categories of employees the right to form and join organizations to defend their own social and occupational interests. The Committee further requests the Government to indicate whether self-employed workers enjoy the rights afforded by the Convention.

With regard to the right to organize in export processing zones (EPZs), the Committee notes the Government’s statement that the Export Processing Zones (Employment and Service Conditions) Rules, 2009 had been finalized in consultation with the stakeholders and will be submitted to the Cabinet for approval. The Committee hopes that the Rules will guarantee freedom of association rights to workers in EPZs and requests the Government to provide a copy thereof as soon as they are adopted.

The Committee notes that according to section 6(2) of the IRA, only trade unions of workers engaged or employed in the same industry may be registered. In the view of the Committee, 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 under the new legislation, trade unions affiliating workers of different professions and/or enterprises could be established.

The Committee further notes section 30(3) of the IRA according to which, 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 unit. The Committee recalls that the right to establish and join unions implies the free determination of the structure and composition of unions. The Committee therefore requests the Government to take the necessary measures in order to ensure that under the new legislation, workers can themselves determine the composition of their unions.

The Committee had previously requested the Government to lower the requirement of the minimum trade union membership set at 25 per cent of workers employed at the respective establishment or industry. The Committee notes that under the IRA, this requirement is lowered to 20 per cent (section 6(2)(b)). Considering that this minimum membership requirement is still too high, the Committee requests the Government to ensure that it is further reduced to a reasonable level.

The Committee notes that under the IRA, 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 24(13)(b) and (c), 32, 41, 42 and 68(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 amongst 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 so as to ensure that under the new legislation, the abovementioned rights are extended to all trade unions.

Article 3. Right to elect representatives freely. 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 notes the Government’s statement that a bill to repeal section 27-B of the Banking Companies Ordinance of 1962 was submitted to the Senate. The Committee expresses the firm hope that the Government will repeal these restrictions in the near future and requests the Government to indicate any measures taken or contemplated in this respect.

The Committee notes that the IRA contains several sections concerning disqualification from being an officer of a trade union. First, under section 7, a person who has been convicted of an offence under section 78 shall be disqualified from being elected as, or from being, an officer of a trade union. According to section 78, whoever contravenes, or fails to comply with, any provisions of the IRA, shall, if no other penalty is provided, be punishable with a fine which may extend to 5,000 rupees. 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 64(7), 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 imposed for involvement in a strike should only be possible where the strike prohibition in question is in conformity with the principle of freedom of association and in any case, should not be imposed if the action in question is peaceful.

Third, the same sanction is also provided for in section 72(4) and (5) of the IRA for committing an unfair labour practice under section 18(1)(a)–(c) and (e). The Committee notes that the provisions of section 18 list 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 person; commence, continue, instigate or incite others to take part on, or expend or supply money 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 ensure that the new legislation takes into account the principles above and effectively guarantees the right of organizations to elect their representatives in full freedom.

Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that section 15(d) of the IRA 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 deemed 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 their 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 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 itself should not infringe the principles of freedom of association.

The Committee notes that, according to section 68(2) and (3) of the IRA, “no party to an industrial dispute should be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act” and that 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. Considering 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, the Committee requests the Government to take the necessary measures to ensure that under the new legislation, these organizations are allowed to be represented by lawyers in administrative or judicial proceedings should they so desire.

Right to strike. The Committee notes that under section 18(1)(e) of the IRA, a work slowdown appears to be an unfair labour practice punishable by a fine which may extend up to 20,000 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 72(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 take the necessary measures in order to ensure that under the new legislation, a peaceful work slowdown is not considered to be a prohibited unfair labour practice and that no sanction could be imposed for participating in such an action.

The Committee notes that, according to section 48(3) of the IRA, where a strike lasts for more than 30 days, the federal or provincial 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 the Government, “is satisfied that the continuance of such strike is causing serious hardship to the community or is prejudicial to the national interests”. Under section 48(4), following prohibition of the strike, the dispute is referred to the National Industrial Relations Commission (NIRC) or the labour court for adjudication. The Committee further notes that under section 49 of the IRA, the federal or provincial 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, and refer the dispute to the NIRC or the labour court for adjudication. A strike carried out in contravention of an order made under this section is deemed illegal by virtue of section 63(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, airways and ports. The Committee recalls that a 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 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 48(3) and 49 (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 ensure that any restriction or prohibition of the right to strike is in conformity with the principles above.

The Committee recalls that for a number of years, it had been requesting the Government to amend the Essential Services Act, which included services beyond those which can be considered essential in the strict sense of the term and sanctioned persons acting in violation of the Act with imprisonment for up to one year. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. 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. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee once again asks the Government to amend this Act so as to bring it into conformity with the abovementioned principle and that its scope is limited to essential services in the strict sense of the term. It requests the Government to indicate any progress in this respect.

The Committee notes that section 48(2) of the IRA authorizes a “party raising a dispute”, either before or after the commencement of a strike, to apply to the labour court for adjudication of the dispute. During this time, the labour court (or tribunal) can prohibit the continuation of the existing strike action (section 62). The Committee recalls that a provision, which permits 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 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 in order to ensure that under the new legislation, referral of the dispute to the courts is possible only in cases where the exercise of the strike can be restricted or even prohibited (see above) or at the request of both parties to the dispute.

The Committee notes that section 64(7) of the IRA provides for the following sanctions for contravening a labour court’s order to call off a strike: dismissal of the striking workers; cancellation of the registration of a trade union; debarring of trade union officers from holding office in that or any other trade union for the unexpired term of their offices and for the term immediately following. The Committee recalls in this respect that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, existence of heavy and disproportionate sanctions for strike action may create more problems than they resolve. Since the application of disproportionate sanctions does not favour the development of harmonious and stable industrial relations, the sanctions should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177 and 178). Consequently, the Committee requests the Government to take the necessary measures in order to ensure that under the new legislation, sanctions for strike action could only be imposed where the prohibition of the strike is in conformity with the Convention and that, even in those cases, the sanctions imposed are not disproportionate to the seriousness of the violation.

Furthermore, the Committee once again asks the Government to indicate whether Presidential Ordinance No. IV of 1999, which amends the Anti-Terrorism Act by penalizing the creation of civil commotion, including illegal strikes or slowdowns, with up to seven years’ imprisonment, is still in force.

Article 4. The Committee notes that the registration of a trade union shall be cancelled if the labour court so directs, following a complaint made by the registrar that the trade union has contravened any of the provisions of the Act or its constitution (section 12(1) of the IRA). The Committee also notes that under section 64(7) of the IRA, the registration of a trade union can be cancelled for contravening a labour court’s order to call off a strike. The Committee recalls that the cancellation of registration of an organization and its dissolution is a measure which should occur only in extremely serious cases. The Committee considers that the cancellation of trade union registration, in view of the serious and far-reaching consequences which dissolution of a union involves for the representation of workers’ interests, would be disproportionate even if the prohibitions in question were in conformity with the principles of freedom of association. While noting that under the IRA, the registration can be cancelled only upon an order by the judicial authorities, the Committee 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. Furthermore, the Committee notes that under section 12(2) of the IRA, if a person who is disqualified under section 7 (a person who has been convicted of an offence under section 78 or heinous offence under the Pakistan Penal Code) is elected as an officer of a registered trade union, the registration of such a union shall be cancelled if the labour court so directs. 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 requests the Government to take the necessary measures in order to ensure that the new legislation takes into account the principles above.

The Committee expresses the firm hope that new legislation would be adopted in the very near future with the full consultation of the social partners concerned and will take into account its comments above. The Committee requests the Government to provide it with a copy of the new legislation once it is adopted.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.