Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

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 had previously noted that, by virtue of section 1(3) of the Industrial Relations Act (IRA) 2012, the Khyber Pakhtunkhwa IRA 2010 (KPIRA), the Punjab IRA 2010 (PIRA), the Sindh IRA 2013 (SIRA), and section 1(4) of the Balochistan IRA (BIRA), read in conjunction with sections 2(ix) of the IRA, 2(vii) of the KPIRA, 2(viii) of the PIRA and the SIRA, and 2(h) of the BIRA, the acts appear to apply only to workers under a contract of employment and to exclude self-employed workers. The Committee notes the Government’s indication that modalities are being discussed to provide the right to unionize to self-employed persons and that although no section in KPIRA deals with trade unions of self-employed persons, a number of unions/associations have been registered for self-employed persons in the markets, shopkeepers, transport owners, drivers and goods transport. The Committee requests the Government to take the necessary measures to ensure that self-employed workers can benefit from the rights provided for in the Convention in law and in practice as soon as possible and to inform it on the measures taken in this regard.

In its previous comment, the Committee had noted that the governments of Balochistan and Sindh had amended the BIRA and the SIRA so as to include persons employed in agriculture and fishing in the scope of the industrial relations legislation and had trusted that the Government would ensure that measures were taken in other provinces and at the federal level so that workers in all sectors including agriculture and fisheries enjoyed rights afforded by the Convention in law and in practice. The Committee notes the Government’s indication that: (i) in Sindh, three unions of agriculture workers and two associations of landlords of agriculture farms have been registered; (ii) the PIRA still does not cover sectors like agriculture and fishing; and (iii) although KPIRA does not explicitly include agriculture and fisheries sectors within its scope, there is no bar on registration of such workers’ unions. In practice, associations in dairy farms, fisheries and bee-keeping businesses have already been registered. Taking due note of the information provided by the Government, the Committee requests the Government to ensure that the federal Government, as well as the governments of the provinces of Khyber Pakhtunkhwa and Punjab, amend the industrial relations legislation so 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)). It notes the Government’s indication that the Government of Balochistan is working on the inclusion of the BIRA in the schedule of the Provincial Laws (Application to the Tribal Areas of Balochistan) Regulation, 1974, and that once this amendment is approved the workers employed in Provincially Administered Tribal Areas will enjoy freedom of association and other fundamental labour rights as enjoyed by other workers. Taking due note of this information, the Committee trusts that the Government of Balochistan will take the necessary measures to ensure that workers and employers within tribal areas will soon benefit from the rights enshrined in the Convention and requests the Government to inform it of the developments in this regard.

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” and that while section 4 of the BIRA, KPIRA, PIRA and 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 appeared to prohibit unions to register in establishments where there is no union or only one union. Noting the Government’s indication that the Federal Tripartite Consultative Committee (FTCC) is the appropriate forum for consultation and taking measures to amend section 6 of the IRA, the Committee once again requests the Government to take the necessary measures to amend this provision through the FTCC or any other forum it deems appropriate so as to ensure that unions may register in establishments where there is no union and to inform it of the developments in this regard.

The Committee had previously noted that, pursuant to sections 8(2)(b) of the IRA and 6(2)(b) of the BIRA, KPIRA, PIRA and SIRA, no other trade union is entitled to registration if there are already two or more registered trade unions in the establishment, group of establishments or industry with which that trade union is connected, unless it has, as members, not less than 20 per cent of the workers employed in that establishment, group of establishments or industry. The Committee notes that the Government reiterates that these provisions seek to avoid the mushroom growth of ineffective trade unions, maintain the effectiveness of collective bargaining agreements and discourage the formation of pocket unions through employer support having no actual base, and adds that their removal will entail the uncontrolled growth of ineffective and non-manageable unions which will result in weakening healthy trade unionism in the long run. The Government further indicates that the government of Balochistan has consulted on the matter with the social partners in the meeting of PTCC regarding BIRA Bill, 2017 and they were unanimous on the need to maintain the requirement of one fifth of the total number of workers; however, the observation of the Committee will again be discussed with the social partners in the upcoming PTCC meeting. The Committee recalls that although it is generally to the advantage of workers and employers to avoid a proliferation of competing organizations, the right of workers to be able to establish organizations of their own choosing, as set out in Article 2 of the Convention, implies that trade union diversity must remain possible in all cases. The Committee considers that it is important for workers to be able to change trade unions or to establish a new union for reasons of independence, effectiveness or ideological choice. Consequently, trade union unity imposed directly or indirectly by law is contrary to the Convention. The Committee therefore once again requests the Government to ensure that workers may establish organizations of their own choosing and that no distinction as to the minimum membership requirement is made between the first two or more registered trade unions and the newly created unions. It requests the Government to take the necessary measures to ensure that the governments of the provinces likewise amend the legislation.

Article 3. Right of workers’ organizations to draw up their constitutions and rules, to organize their administration and to formulate their programmes. The Committee had previously noted that section 8 of the IRA and section 6 of the BIRA, KPIRA, PIRA and the SIRA 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. It had also noted 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, 59(3) of the PIRA and 60(3) of SIRA) 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 the Government’s indication that a reasonable limit to the term of office-bearers should be considered as a minimum requirement, as otherwise room is provided for dictatorship and that the limits with respect to frequency of the meetings of union bodies are necessary to ensure that the trade union remains active and operational. The Government further adds that the governments of Khyber Pakhtunkhwa and Balochistan consider that the above-cited legal provisions promote democracy and ensure better performance of union executives.

Recalling that national legislation should only lay down formal requirements respecting trade union constitutions, except with regard to the need to follow a democratic process and to ensure a right of appeal for the members, 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 once again 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 had previously noted 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. It notes the Government’s indication that a go-slow as defined in the PIRA entails a drastic reduction in the economic activity especially hampering the export-oriented businesses serving as a backbone to the economy. It would therefore be contrary to the national interest to allow this form of industrial action. The governments of Sindh and Khyber Pakhtunkhwa consider that allowing go-slow as a legal form of industrial action can adversely affect productivity in the concerned establishment and the overall economic activity in the province, therefore the amendments requested by the Committee are not recommended to be adopted; go-slow is a peaceful illegal practice which may not be legalized. The government of Balochistan has proposed omission of the word “go-slow” in the section 18(1)(e) in the new BIRA bill. The matter may be referred to the PTCC for further review. The Committee recalls that restrictions as to the forms of strike action (including go-slow) can only be justified if the action ceases to be peaceful. While welcoming the proposal of the Government of Balochistan to amend the BIRA with a view to allowing go-slow as a form of legal industrial action, the Committee once again requests the Government to take the necessary measures in order to amend the federal 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 had previously noted that: (i) sections 42(3) of the IRA, 48(3) of the BIRA, 44(3) of the KPIRA, 40(3) of the PIRA and 41(3) and (4) of the SIRA, 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 KPIRA, 49 of the BIRA, 41 of the PIRA and 42 of the SIRA); (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, 55(1)(c) of the PIRA and 56(1)(c) of the SIRA; and (iv) according to the schedules of the IRA, KPIRA, PIRA and SIRA the lists of public utility services include services such as oil production, postal services, railways and airways. The Committee notes the Government’s indication that under section 49(5) of the PIRA, the government is legally bound to refer the dispute to the Labour Court immediately after prohibiting the strike. In this way, a strike which fails to resolve the dispute after thirty days is discontinued and an amicable settlement or award through judicial process is facilitated by the Government in the interest of all stakeholders. The government of Khyber Pakhtunkhwa acknowledges that not any strike which exceeds 30 days is against the public interest and legal action is only taken when public utility services such as provision of gas, electricity, sanitation and the like to the public are largely affected. In the latter cases the amendment of legislation is not generally recommended. The governments of Sindh and Khyber Pakhtunkhwa will discuss the matter with the social partners within the PTCC. As for the government of Balochistan, it has proposed a provision in the following wording under section 51 of the new BIRA draft: “The Government shall not prohibit strike or lock-out except in exceptional situations, essential services, those involved in the administration of the state and police and armed forces, or in situation of national emergency”. The Committee again 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 considers that not every strike lasting longer than 30 day 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. Welcoming the legislative amendment proposal made by the Government of Balochistan, the Committee once again requests the Government to take the necessary measures in order to amend the federal 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 other 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 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, 40(2) of the PIRA and 41(2) of the SIRA); and (iii) pending adjudication, the Commission/Labour Court can prohibit the continuation of the existing strike action (sections 61 of the IRA, 62 of the BIRA, 58 of the KPIRA, 54 of the PIRA and 55 of the SIRA). It notes that the Government reiterates 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. Regretting the lack of progress, the Committee once again 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 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, KPIRA, PIRA, and SIRA) punishable by a fine of up to 20,000 Pakistani rupees (PKR) (sections 72(3) of the BIRA, 68(3) of the KPIRA, 64(3) of the PIRA and 65(3) of the SIRA), 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, 56(7) of the PIRA and 57(7) of the SIRA). It also notes the Government’s indication that: peaceful strikes have never been discouraged and these sanctions are just to hinder serious infringements. The governments of Punjab and Khyber Pakhtunkhwa clarified that the penalties are to serve as a deterrent against a contempt of court order; in general law punishments for contempt of court are much harder. The government of Sindh will place the issue before the PTCC for final decision. While noting that the Government states that such sanctions do not aim at discouraging peaceful strikes, 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 cases 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 therefore once again 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 their 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, and the Committee had considered that a federation or confederation which has a similar name but not the same/identical name as an already existing federation or confederation should not be prevented from being formed and registered. It had therefore requested the Government to take all measures to amend the legislation by deleting the term “similar”. The Committee notes the Government’s indication that the FTCC is the appropriate forum to appreciate the implications of the recommendation of the Committee on industrial relations and peace in the context of Pakistani social fabric. The Committee requests the Government to take the necessary measures to amend the legislation after consultation with social partners in the FTCC so as to ensure that a federation or confederation which has a similar but not the same name as an already existing federation or confederation is not prevented from being formed or registered.