Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Pakistan (Ratification: 1952)

Autre commentaire sur C098

Observation

Demande directe

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The Committee notes the observations submitted by the Government on the comments of the International Trade Union Confederation (ITUC) concerning the allegation of intimidation on the part of employers in which it indicates that: (1) employers and employees are the main actors in industrial relations; (2) the system works with mutual understanding; and (3) any misunderstanding between the parties might lead to mistrust but in case of any grievance, the workers have the right to approach labour courts and any other courts of law. The Committee further notes the comments submitted by the ITUC in a communication dated 31 July 2012, referring to similar issues as the ones raised in its 2010 and 2011 communications and, in particular, to allegations of anti-union dismissals and acts of interference in trade union internal affairs by employers (intimidation, and blacklisting of trade unions and their members). The Committee requests the Government to provide its observations on the 2012 ITUC allegations.

The Committee recalls that in its previous observation, it had noted 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 these instruments would be in full conformity with the Convention. The Committee notes that industrial relations acts have been adopted in the Provinces of Balochistan, Khyber-Pakhtoonkhwa, Punjab and Sindh in 2010. The Committee notes that the Industrial Relations Act (IRA), 2012, which 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)), replaces the Industrial Relations Ordinance (IRO) of 2011. It notes with regret that most of its previous comments on the Industrial Relations Act, 2008, and on the IRO, 2011, have not been addressed by the IRA, 2012. It further notes that the Sindh Industrial Relations (Revival and Amendment) Act, 2010 (SIRA), revives the IRA, 2008, omitting section 87(3), and that the Balochistan IRA (BIRA), the Khyber-Pakhtoonkhwa IRA (KPIRA) and the Punjab IRA (PIRA) all raise similar issues as the IRA, 2012.

Scope of application of the Convention. The Committee notes that by virtue of their sections 1(3), the IRA, 2012, the BIRA, KPIRA, PIRA and SIRA maintain the same exclusion from their scope of application as previously existed under the IRO 2002 and IRA 2008 (independent agricultural workers, workers of charitable organizations, workers employed by the Pakistan Security Printing Corporation or the Security Papers Limited, etc.), and that the definition of “worker” and “workman” excludes any person who is employed mainly in managerial or administrative capacity, as examined in detail by the Committee in its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee further notes that the BIRA excludes tribal areas from its scope. The Committee notes the Government’s indication that the industrial relations laws have been framed after consultation with workers’ organizations and that the IRA 2012 is applicable to all categories of workers with certain exceptions that have been made due to the specific security situation in the country. The Committee recalls that the only categories of workers which can be excluded from the application of the Convention are the armed forces, the police and public servants engaged in the administration of the State. The Committee therefore requests the Government to take the necessary measures in order to amend the legislation so as to ensure that all workers, with the only possible exception of the armed forces, the police and public servants engaged in the administration of the State, enjoy the rights enshrined in the Convention. It underlines the importance that the governments of the provinces take measures in the same direction. Furthermore, the Committee requests the Government to indicate whether workers in Balochistan’s tribal areas enjoy the rights enshrined in the Convention.

With regard to public servants, the Committee notes that the IRA does not apply to workers employed in the administration of the State other than those employed as workmen (section 1(3)(b)) – the BIRA, KPIRA, PIRA and SIRA adds “as workman employed by the Railway and Pakistan Post”. The Government indicates that “persons employed in the administration of the State” imply persons employed in Government departments. The Committee requests again the Government to specify and provide examples of categories of workers employed in the administration of the State excluded from the scope of application of the legislation.

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 that the rules have not yet been finalized. 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 as soon as they are adopted.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Banking sector. The Committee had previously requested the Government to amend section 27-B of the Banking Companies Ordinance of 1962, imposing sanctions of imprisonment and/or fines on the grounds of the exercise of trade union activities during office hours. The Government indicated 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 notes that the Government indicates that amendment of section 27-B is under process with the Senate. 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.

Article 4. Collective bargaining. The Committee notes that, according to section 19(1) of the IRA, 2012, and sections 24(1) of the BIRA, KPIRA, PIRA and SIRA, if a trade union is the only trade union in the establishment or group of establishments (or industry, in the BIRA, KPIRA, PIRA), but it does not have at least one third of the employees as its members, no collective bargaining is possible at the given establishment or industries. The Committee recalls that it had previously requested the Government to amend similar sections which existed under the IRO 2002, IRA 2008 and IRO 2011. The Committee notes the Government’s indication that a collective bargaining agent has to bargain for all the workers employed in an establishment and that certifying a union without any strength will not only be unjustified but may also increase chances of pocket unions to become collective bargaining agents. The Committee requests the Government to take the necessary measures in order to ensure that if there is no union representing the required percentage to be designated as a collective bargaining agent, collective bargaining rights are granted to the existing union, at least on behalf of its own members. The Committee underlines the importance that the governments of the provinces take measures in the same direction.

The Committee notes that under sections 23(1) of the IRA, 33(1) of the BIRA and SIRA, 29(1) of the KPIRA and 28(1) of the PIRA, shop stewards are either nominated (by a collective bargaining agent) or elected (in the absence of a collective bargaining agent) in every undertaking employing over 50 workers (25 workers, in the case of the IRA) to act as a link between the workers and the employer, to assist in the improvement of arrangements for the physical working conditions, etc. (sections 24 of the IRA, 33(5) of the BIRA and SIRA, 29(5) of the KPIRA and 28(5) of the PIRA). Furthermore, sections 25 of the IRA, 34 of the BIRA and SIRA, 30 of the KPIRA and 29 of the PIRA provide for works councils (bipartite bodies), which are established in every undertaking employing over 50 workers. These sections (and section 26 of the IRA) lists the functions of such councils and further provides that the management shall not take any decision relating to working conditions without the corresponding advice from workers’ representatives, which could be nominated (by a collective bargaining agent) or be elected by workers employed by the enterprise in question (in the absence of a collective bargaining agent). Finally, sections 28 of the IRA, 35 of the BIRA and SIRA, and 31 of the KPIRA, provide for the joint management boards to look after the fixation of job and piece-rate, planned regrouping or transfer of workers, laying down the principles of remuneration and introduction of remuneration methods, etc. (these functions are granted to works councils under the PIRA). The IRA specifies that the worker representatives in such boards are nominated by a collective bargaining agent if there are one or more trade unions at the enterprise, or are chosen from amongst workers of the relevant undertaking, if there is no collective bargaining agent. In the light of the abovementioned provision contained in section 19(1) of the IRA and sections 24(1) of the BIRA, KPIRA, PIRA and SIRA, the Committee considers that the position of a single trade union not enlisting over one third of workers employed at the relevant establishment or group of establishments (and therefore, as indicated above, not enjoying collective bargaining rights) may be undermined in practice by other worker representatives represented at the abovementioned bodies, the functions of which have an impact upon the regulation of terms and conditions of employment. The Committee notes the Government’s indication that: (1) the position of such a trade union is not undermined by the use of secret ballot for determination of workers’ representation as shop steward and in works councils and joint management boards; and (2) the IRA provides under section 6 that there shall be at least two trade unions in an establishment. The Committee requests the Government to take the necessary measures to amend its legislation so as to ensure that the position of such trade unions is not undermined by the existence of other workers’ representatives, particularly when there is no collective bargaining agent. The Committee underlines the importance that the governments of the provinces take measures in the same direction. The Committee notes the Government’s statement according to which the IRA provides under section 6 that “there shall be at least two trade unions in an establishment”. The Committee requests the Government to explain the consequences when there is just one union in an establishment.

Compulsory conciliation. The Committee notes the possibility of compulsory conciliation requested by the law in the collective bargaining process (sections 36 and 37 of the IRA, 45 and 46 of the BIRA and SIRA, 41 and 42 of the KPIRA, 36 and 37 of the PIRA) and refers to the observations made under Convention 87. Moreover, the Committee notes that the conciliator is appointed either directly by the Government (43 of the BIRA and SIRA, 39 of the KPIRA, 35 of the PIRA) or by the Commission whose ten members are appointed by the Government, with only one member representing employers and another one representing trade unions (section 53 of the IRA). The Committee underlines that the system of appointment of the conciliator, as well as the composition of the Commission, could raise questions concerning the confidence of the social parties in the system. The Committee requests the Government to take measures to amend this provision so as to ensure the confidence of the social partners in the conciliation mechanism. The Committee underlines the importance that the governments of the provinces take measures in the same direction.