Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

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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The Committee notes the adoption of the Sindh Industrial Relations Act, 2013 (SIRA), and the amendment of the Balochistan IRA (BIRA) in 2015.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee had previously noted that, by virtue of section 1(3) of the Industrial Relations Act (IRA), 2012, the Khyber-Pakhtoonkhwa IRA, 2010 (KPIRA), the Punjab IRA, 2010 (PIRA), and section 1(4) of the Balochistan IRA (BIRA), read in conjunction with section 2(ix) of the IRA, 2(h) of the BIRA, 2(vii) of the KPIRA, and 2(viii) of the PIRA, the Acts appear to apply only to workers under a contract of employment. Sections 1(3) and 2(viii) of the recently adopted SIRA contain similar provisions. The Committee notes the Government’s indication that: (i) the industrial relations legislation covers the employer–employee relationship and does not deal with self-employment; (ii) self-employed are covered under article 17 of the Constitution which grants every citizen the right to form and join associations; and (iii) the laws enforcing this constitutional provision are the Societies Registration Act, 1860 and the Co-operative Societies Act, 1925, which govern the terms of engagement of organizations and associations in the country which are registered with provincial social welfare departments. The Committee requests the Government to provide examples of registered associations of self-employed, as well as legislative and other information specifying how these associations benefit from the trade union rights enshrined in the Convention.

Recalling that in the past, issues had been raised concerning the applicability of the federal and provincial industrial relations legislation to agricultural workers, the Committee notes with interest that: (i) section 1(3) of the SIRA and section 1(4) of the BIRA, as amended, explicitly provide that the Act shall apply to all persons employed in any establishment or industry, including fishing and agriculture; and (ii) the Government indicates that Sindh has become the first Province to recognize women and men in the agriculture and fisheries sector as workers under law and has registered the first ever trade union for this sector, the Sindh Agriculture and Fishing Workers Union (SAFWU), which currently has 400 members of whom 180 are women. The Committee trusts that the Government will ensure that it, as well as all the governments of the other provinces, will take the necessary measures to ensure that workers engaged in all sectors, including agriculture and fishing, enjoy the rights afforded by the Convention in law and in practice.

The Committee had previously noted that the BIRA excludes tribal areas from its application (section 1(2)). While noting the Government’s indication that, according to the Government of Balochistan, in the new draft BIRA 2015, an amendment has been proposed to section 1(2) which allows workers employed in Provincially Administered Tribal Areas to enjoy freedom of association rights as enjoyed by other workers, the Committee notes that the BIRA, as amended, still excludes tribal areas from its scope of application. The Committee requests the Government to ensure that the Government of Balochistan takes measures to ensure that workers and employers within tribal areas will soon benefit from the rights enshrined in the Convention.

The Committee had previously noted 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. Noting the Government’s indication that section 6 seeks to counter the emergence of pocket unions supported by the employer (yellow unions), the Committee observes that, while sections 4 of the BIRA, the KPIRA, the PIRA and the SIRA simply provide that any trade union may under the signatures of its president and secretary apply to the Registrar for registration, the additional wording in section 6 of the IRA “provided that there shall be at least two trade unions in an establishment” appears to prohibit unions from registering in establishments where there is no union or only one union. The Committee requests again the Government to take the necessary measures to amend section 6 of the IRA so as to ensure that unions may register in establishments where there is no union or only one union.

Article 3. Right to elect representatives freely. The Committee had previously noted that the IRA contains several sections concerning disqualification from being elected to, or holding, a trade union office: (i) conviction or prison sentence for two years or more for offences involving moral turpitude under the Pakistan Penal Code, unless a period of five years has elapsed after the completion of the sentence (section 18 of the IRA); conviction for the contraventions of the Act (section 7 of the KPIRA); conviction for heinous offences under the Pakistan Penal Code (section 7 of the BIRA, the KPIRA, and the PIRA); violation of the National Industrial Relations Commission (NIRC) or Labour Court order to stop a strike (section 44(10) of the IRA, section 64(7) of the BIRA, section 60(7) of the KPIRA, and section 56(7) of the PIRA). The Committee notes that, under sections 7 and 57(7) of the SIRA, a person is disqualified from union office for having received a penalty for embezzlement or misappropriation of funds, as well as the reasons stated in the BIRA. The Committee notes the Government’s indication that: (i) conviction and imprisonment does not stop a person from being elected as an officer of a trade union, however, a period of five years must pass after completion of the sentence; (ii) a person found guilty of moral turpitude or who is convicted of a criminal offence of heinous nature under the Pakistan Penal Code such as theft, assault, murder or attempt to murder, etc., cannot be allowed to hold position of trust in which he or she has to represent the workers before the employer and the Government; (iii) as for disqualification due to violation of the NIRC or Labour Court order to stop a strike, such judicial decision is taken by the NIRC only after holding inquiries and giving both parties the right to hearing, and the NIRC may review its orders within seven days if good and sufficient cause is shown by the affected worker; (iv) according to the Balochistan Government, the Committee’s comments will be tabled before the Provincial Tripartite Consultative Committee in its next meeting; (v) the Government of Sindh also plans to place these comments before its Tripartite Consultative Committee; (vi) according to Government of Khyber Pakhtunkhwa, sections 7 and 60(7) of the KPIRA provide for disqualification only after a judicial decision of a competent court providing an opportunity of full hearing to the parties and thus need no amendment; and (vii) the Government of Punjab is of the view that section 7 of the PIRA vests power in the union executives to deal with disqualification of a union officer from holding office, and section 56 empowers the appellate court to take such action, so as to create checks and balances for the healthy promotion of trade unionism. The Committee emphasizes that legislation which establishes excessively broad ineligibility criteria such as 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. In this regard, the Committee considers that not every contravention of industrial relations legislation, nor every violation of a judicial order to stop a strike, nor every conviction for the range of criminal offences alluded to constitute necessarily acts of such a nature as to be prejudicial to the performance of trade union duties. In light of the above, the Committee welcomes the initiatives of the Governments of Balochistan and Sindh to refer the Committee’s comments to the Tripartite Consultative Committee. The Committee requests the Government to take the necessary measures to amend the legislation so as to make the grounds for disqualification more restrictive and to take the necessary steps to ensure that the governments of the provinces take measures to likewise amend the legislation.

Right of workers’ organizations to draw up their constitutions and rules, to organize their administration and to formulate their programmes. The Committee notes that sections 8 of the IRA and 6 of the BIRA, the KPIRA, and the PIRA, regulate in detail the internal functioning of trade unions. Specifically, their 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, 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 or Labour Court thinks just. The Committee notes that section 6(1)(j) and (l) and section 60(2) and (3) of the SIRA contain similar provisions. It also notes the Government’s indication that: (i) the industrial relations laws prescribe the general guidelines/requirements for registration of a trade union and the requisite information that a trade union constitution must contain, however, the formulation of constitution lies with the union itself; (ii) the requirement that a union officer may be elected for two years promotes trade union democracy and gives a chance to other members to become part of the union executive; and (iii) provisions are there for a checks and balances purpose with the aim to promote healthy trade union activities in the country where workers are not punished by their unions for not participating in any illegal strike or lockout. The Committee reiterates that, pursuant to the rights of workers’ organizations under the Convention to draw up their constitutions and rules, to organize their administration and to formulate their programmes, certain matters should be left to the unions themselves, such as to set the period of terms of office and to expel or sanction union members according to their constitution and by-laws. The Committee, 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 take measures to likewise amend the legislation.

The Committee had previously noted that sections 65(2) and (3) of the IRA, 68(2) and (3) of the BIRA and the 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 notes that section 61(2) and (3) of the SIRA contains the same provisions. It also notes the Government’s indication that: (i) conciliation is defined as a means of assisting the parties to settle the dispute by themselves, through neutral third party intervention, aimed at reaching a non-imposed mutually agreed settlement when bilateral negotiations have failed or reached an impasse; involving legal practitioners at this stage may drag parties into legal battles thereby frustrating the resolution of the dispute; and (ii) as to the proceedings before the Labour Court, an arbitrator or the tribunal, the word “permission” means that a formal authorization of the parties to an industrial dispute is submitted in the form of a Wakalat Nama (Power of Attorney), and the court, tribunal or the arbitrator is mandatorily bound by law to accept such authorization of the parties engaging legal practitioners. The Committee takes due note of this information.

The Committee had previously noted that, under sections 32(1)(e) of the IRA and 18(1)(e) of the BIRA, the KPIRA, and the PIRA, a go-slow appears to be an unfair labour practice. The Committee notes that section 18(1)(e) of the SIRA contains the same provision. It also notes the Government’s indication that: (i) industrial relations legislation needs to maintain industrial peace, promote healthy trade unionism and keep a balance between the rights of employees and those of employers; (ii) go slow is often used as a tool to pressurize the employer by compromising quantity of work rather than the quality, which means that amending the law is likely to harm economic activity; (iii) according to the Government of Balochistan, a debate has been initiated in a tripartite consultation forum on the issue of a go-slow; (iv) according to the Government of Sindh, a debate has been initiated in a tripartite consultative forum on the issue; (v) the Government of Khyber Pakhtunkhwa states that allowing a go-slow as a legal form of industrial action can adversely affect the productivity of the concerned establishment and the overall economic activity in the Province, and that such amendment may not be adopted; and (vi) Employers’ Federation of Pakistan (EFP) has strongly opposed such amendment as it could have a negative impact on industrial growth. The Committee reiterates that restrictions as to the forms of strike action (including go-slows) can only be justified if the action ceases to be peaceful. The Committee welcomes the initiatives of the Governments of Balochistan and Sindh to refer its comments to the Tripartite Consultative Committee. The Committee once again 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 take steps to amend their legislation.

The Committee had previously noted that: (i) sections 42(3) of the IRA, 48(3) of the BIRA, 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”; (ii) the Government can prohibit a strike related to an industrial dispute “of national importance” (sections 45 of the IRA and 49 of the BIRA) or in respect of any public utility services, at any time before or after its commencement (sections 45 of the IRA and the KPIRA, section 49 of the BIRA, and section 41 of the PIRA); (iii) a strike carried out in contravention of the above sections, is deemed illegal by virtue of sections 43(1)(c) of the IRA, 63(1)(c) of the BIRA, 59(1)(c) of the KPIRA and 55(1)(c) of the PIRA; and (iv) according to the schedules of the IRA, the KPIRA, and the PIRA, the list of public utility services include services such as oil production, postal services, railways and airways. The Committee notes that sections 41(3) and (4), 42 and 56(1)(c) of the SIRA contain the same provisions as the KPIRA and the PIRA, and that the BIRA and the SIRA schedules list similar public utility services as the other schedules. It also notes that the Government confines itself to repeating the content of the abovementioned provisions, and that the EFP strongly opposes any change in the existing provisions in the four Provinces. The Committee reiterates that the prohibition of strikes can only be justified: (i) in the public services only for public servants exercising authority in the name of the State; (ii) in the event of an acute national or local crisis; or (iii) 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 not every strike lasting longer than 30 days fulfils these conditions; and that services such as oil production, postal services, railways and airways do not normally constitute essential services in the strict sense of the term, although they are important public services in which a minimum service could be required in case of a strike. The Committee once again 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 Convention 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 had previously noted that: (i) following the prohibition of a strike by the Government pursuant to the above-noted sections, the dispute is referred to the NIRC or the Labour Court for adjudication; (ii) a “party raising a dispute”, either before or after the commencement of a strike, may apply to the Commission or the Labour Court, as applicable, for adjudication of the dispute (sections 42(2) of the IRA, 48(2) of the BIRA, 44(2) of the KPIRA, and 40(2) of the PIRA); and (iii) pending adjudication, the Commission or the Labour Court can prohibit the continuation of the existing strike action (sections 61 of the IRA, 62 of the BIRA, 58 of the KPIRA, and 54 of the PIRA). The Committee notes that sections 41(2) and 55 of the SIRA contain the same provisions. It welcomes the Government’s indication that the issue will be placed on the agenda of upcoming tripartite consultation committees at the federal and provincial levels, and that if both employers’ and workers’ organizations agree to a legislative amendment along the lines of the Committee’s comments, the law would be amended accordingly. The Committee expresses the firm hope that the Government will take the necessary measures to amend the legislation so as to ensure that recourse to compulsory arbitration is possible only in cases where 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 had previously noted that: (i) 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 (sections 32(1)(e) of the IRA, 18(1)(e) of the BIRA, the KPIRA, and the PIRA), punishable by a fine of up to 20,000 Pakistani rupees (PKR) (sections 72(3) of the BIRA, 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); (ii) contravening an order to call off a strike is sanctioned as follows: 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 (sections 44(10) of the IRA, 64(7) of the BIRA, 60(7) of the KPIRA and 56(7) of the PIRA). The Committee notes that sections 18(1)(e), 57(7) and 65(3) of the SIRA contain the same provisions. It also notes the Government’s indication that: (i) the sanctions for contravening an order to call off a strike by a court are there for the maintenance of industrial peace in the country and upholding the decision of the Court; (ii) the law provides that the labour courts may review the decision if good and sufficient cause is shown by an affected worker within seven days of an order of dismissal; (iii) these sanctions are not applied against workers for having carried out a peaceful strike; and (iv) a labour court applies these sanctions judiciously and only after holding such inquiry as it deems fit. While noting that the Government states that such sanctions are only applied against workers who resort to violence against persons or property during a strike, the Committee observes that the legislative provisions imposing the sanctions refer, more broadly, to illegal strikes, which may include peaceful strikes that do not comply with formalities such as notice requirements. The Committee recalls that: (i) 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 except in case of violence against persons or property or other serious infringements of rights and only pursuant to legislation punishing such acts; (ii) 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; and (iii) sanctions for illegal strike action should be imposed only if the prohibitions or restrictions on the right to strike are in conformity with the Convention. The Committee requests the Government to take the necessary measures in order to amend its legislation accordingly and to take all the necessary steps to ensure that the governments of the provinces likewise take measures to amend the legislation.

Articles 5 and 6. Right of organizations to establish federations and confederations. The Committee had previously noted 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 notes that, according to the Government, the provisions seek to prevent registration of such unions that are not true representatives of workers. The Committee observes that, contrary to the Government’s indication in its last report that “similar name” was equivalent to “same name”, the Government now states that the words “same” and “similar” are not synonymous. The Committee considers that a federation or confederation which has a similar name but not the same or identical name as an already existing federation or confederation should not be prevented from being formed and registered. The Committee requests the Government to take all measures to amend the legislation by deleting the term “similar”.