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

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Pakistan (Ratification: 1951)

Autre commentaire sur C087

Observation

Demande directe

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Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes that, by virtue of section 1(3) of the Industrial Relations Act (IRA), 2012, the Khyber-Pakhtoonkhwa IRA (KPIRA), the Punjab IRA (PIRA), and the Sindh IRA (SIRA), sections 1(4) of the Balochistan IRA (BIRA), 2(ix) of the IRA, 2(h) of the BIRA, 2(vii) of the KPIRA, and 2(viii) of the PIRA and SIRA, the acts appear to apply only to workers under a contract of employment. The Committee notes the Government’s indication that the right of association is guaranteed in the Constitution and, while the industrial relations laws deal with trade unions operating in establishments where employee–employer relations exist, there is no bar for self-employed workers to organize under the Constitution or other laws. The Committee requests the Government to indicate under which specific laws self-employed workers enjoy the rights afforded by the Convention.

The Committee notes that the BIRA excludes tribal areas from its application (section 1(2)). The Committee requests the Government to indicate whether workers and employers within tribal areas excluded by the BIRA enjoy the rights enshrined by the Convention.

The Committee notes that, according to section 6 of the IRA, any trade union may apply for registration provided that there shall be at least two trade unions in an establishment. The Committee notes the Government’s indication that section 6, which implies that there should be at least two trade unions in every establishment, promotes the formation of trade unions. Since such a requirement would seem to impede the formation of trade unions in establishments where there are no unions or just one union, as no union could apply for registration, the Committee requests the Government to take the necessary measures to amend section 6 of the IRA.

Article 3. Right to elect representatives freely. The Committee notes that the IRA contains several sections concerning disqualification from holding a trade union office. First, under section 18 of the IRA, 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, 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; under section 7 of the BIRA, KPIRA, PIRA and SIRA, a person who has been convicted of contraventions to the Act (KPIRA and SIRA), or heinous offence under the Pakistan Penal Code, shall be disqualified from being elected as, or from being, an officer of a trade union. 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 on the fundamental Conventions concerning rights at work, 2012, paragraph 106). Second, the NIRC (“Commission” – section 44(10) of the IRA), or the Labour Court (section 64(7) of the BIRA and SIRA, 60(7) of the KPIRA, and 56(7) of the PIRA), have 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). 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 on freedom of association and collective bargaining, 1994, paragraph 120). In light of the above, the Committee requests the Government to take the necessary measures to amend the legislation so as to bring it into accordance with the principles above and to take the necessary measures to ensure that the governments of the provinces likewise amend the legislation.

Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that sections 8 of the IRA and 6 of the BIRA, KPIRA, PIRA and SIRA, regulates in detail the internal functioning of trade unions. Specifically, its subsection 1(j), respectively, 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), respectively, provides for the frequency of meetings of a union’s executive and general body. The Committee further notes that the Commission (under section 48(2) of the IRA) or the Labour Court (under sections 67(2) of the BIRA and SIRA, 63(2) of the KPIRA, and 59(3) of the PIRA) have the 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/Labour Court 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 legislation in this respect and to ensure that the governments of the provinces likewise amend the legislation.

The Committee notes that sections 65(2) and (3) of the IRA, 68(2) and (3) of the BIRA and SIRA, 64(2) and (3) of the KPIRA, and 60(2) and (3) of the PIRA, provide that “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, the Commission, or arbitrator, as applicable under the acts, only with the permission of the Labour Court, 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. The Committee therefore requests the Government to take the necessary steps to review the legislation 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, and to take the necessary steps to ensure that the governments of the provinces likewise take these measures.

The Committee notes that, under sections 32(1)(e) of the IRA and 18(1)(e) of the BIRA, KPIRA, PIRA and SIRA, 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, 2012, op. cit., paragraph 126). The Committee therefore requests the Government to take the necessary measures in order to amend the legislation so as to ensure that a peaceful work slowdown is not considered to be a prohibited unfair labour practice and to take the necessary measures to ensure that the governments of the provinces likewise amend their legislation.

The Committee notes that sections 42(3) of the IRA, 48(3) of the BIRA and SIRA, 44(3) of the KPIRA, and 40(3) of the PIRA, provide 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 sections 45 of the IRA and KPIRA, 49 of the BIRA, 41 of the PIRA, and 49 of the SIRA, the Government can prohibit a strike related to an industrial dispute “of national importance” (this precision is not in the KPIRA or the PIRA), or in respect of any public utility services, at any time before or after its commencement. A strike carried out in contravention of an order made under these sections, as well as the sections noted above, is deemed illegal by virtue of sections 43(1)(c) of the IRA, 63(1)(c) of the BIRA and SIRA, 59(1)(c) of the KPIRA, and 55(1)(c) of the PIRA. The Committee notes that, according to the schedules of the IRA, KPIRA, PIRA and SIRA setting out the list of public utility services, these include 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 crisis; 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 notes the Government’s indication that the new laws have been framed after consultation with the social partners and keeping in mind national requirements. The Committee requests the Government to take the necessary measures in order to amend the legislation so as to ensure that any prohibition or restriction imposed on the right to strike is in full conformity with the abovementioned principles and to take all the necessary steps to ensure that the governments of the provinces take measures, in consultation with the social partners, to likewise amend the legislation. The Committee requests the Government to ask the Government of Balochistan to provide a copy of the schedule defining public utility services in the BIRA.

The Committee notes that, following the prohibition of a strike by the Government pursuant to the above-noted sections 42 and 45 of the IRA, 48 and 49 of the BIRA, 44 and 45 of the KPIRA, 40 and 41 of the PIRA, and 48 and 49 of the SIRA, the dispute is referred to the Commission and/or the Labour Court for adjudication. The Committee further notes that sections 42(2) of the IRA, 48(2) of the BIRA, 44(2) of the KPIRA, 40(2) of the PIRA, and 48(2) of the SIRA, authorize a “party raising a dispute”, either before or after the commencement of a strike, to apply to the Commission/Labour Court, as applicable, for adjudication of the dispute. Pending adjudication, the Commission/Labour Court can prohibit the continuation of the existing strike action (sections 61 of the IRA, 62 of the BIRA and SIRA, 58 of the KPIRA, and 54 of the PIRA). 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. Furthermore, the Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation (see General Survey, 2012, op. cit., paragraph 153). The Committee therefore requests the Government to take the necessary measures to amend the legislation 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 above and to take all the necessary steps to ensure that the governments of the provinces take measures to likewise amend the legislation.

The Committee notes that, under sections 32(1)(e) of the IRA, 18(1)(e) of the BIRA, KPIRA, PIRA, and SIRA, 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 20,000 Pakistani rupees (PKR) (sections 72(3) of the BIRA and SIRA, 68(3) of the KPIRA, and 64(3) of the PIRA), and/or imprisonment which may extend to 30 days (section 67(3) of the IRA). The Committee further notes that sections 44(10) of the IRA, 64(7) of the BIRA and SIRA, 60(7) of the KPIRA, and 56(7) of the PIRA, provide for the following sanctions for contravening an 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 and to take all the necessary steps to ensure that the governments of the provinces take measures to likewise amend the legislation.

Articles 5 and 6. Right of organizations to establish federations and confederations. The Committee notes that, under section 14(4) of the IRA, no trade union federation or confederation shall be formed and registered having the same, similar, or identical name. The Committee requests the Government to clarify what interpretation is given to the wording “similar name”. Noting that the Government indicates that “similar names” means “same name”, the Committee requests the Government to take all measures to amend the legislation to delete “similar”, since it is a synonym of “same”, to avoid that a federation or confederation which have similar but not the same name be prevented from being formed.