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

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

Autre commentaire sur C098

Observation

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The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2018 and the Government replies thereto. It also notes the Government’s reply to the ITUC 2017 observations. Furthermore, the Committee regrets that the Government has not fully responded to the 2012 and 2015 ITUC 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 once again requests the Government to provide its comments on these observations.

Legislative issues. The Committee recalls that, in its previous comments, it had noted: (i) 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; (ii) the adoption of the Industrial Relations Act (IRA), 2012, which regulates industrial relations and registration of trade unions and federations of trade unions in the Islamabad Capital Territory and in the establishments covering more than one province (section 1(2) and (3) of the IRA), and the content of which did not address most of the Committee’s previous comments; (iii) the adoption in 2010 of the Balochistan IRA (BIRA), the Khyber Pakhtunkhwa IRA (KPIRA), the Punjab IRA (PIRA), and the Sindh Industrial Relations (Revival and Amendment) Act, all of which raised similar issues as the IRA. The Committee had also noted the adoption in 2013 of the Sindh Industrial Relations Act, 2013 (SIRA), which replaced the former industrial relations legislation, and the amendment of the BIRA in 2015. It also noted the Government’s statement that the responsibility for the coordination of labour-related issues and the responsibility to ensure that provincial labour laws are drafted in accordance with international ratified Conventions, lie with the federal Government.

Scope of application of the Convention. The Committee had previously noted that the IRA, BIRA, KPIRA, PIRA and SIRA excluded numerous categories of workers (enumerated 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), from their scopes of application, and – as far as the BIRA is concerned – workers employed in tribal areas. It notes the Government’s indication that: (i) the exclusions identified under the PIRA are meant for smooth sailing of the governance and to provide uninterrupted public services without causing any harm or hardship to the public; (ii) the Government of Khyber Pakhtunkhwa will forward the point for discussion and opinion to the Provincial Tripartite Consultation Committee (PTCC); (iii) the Government of Balochistan has proposed necessary amendments in the upcoming BIRA, 2017; furthermore, in its report under Convention No. 87 the Government states that an amendment proposal has been made that would allow workers employed in the Provincially Administered Tribal Areas to enjoy freedom of association rights; and (iv) the Government of Sindh has already taken steps to provide the right of association to agriculture and fisheries workers under SIRA 2013 and workmen employed in various government departments enjoy the right of association. The security staff, however, cannot be granted the right of association due to security reasons and public interest. Furthermore the Government of Sindh is going to submit a proposal to expand the coverage of SIRA in hospitals and educational institutions.

With regard to public servants in particular, the Committee had previously noted 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)), and that the BIRA, KPIRA, and PIRA and section 1(3)(ii) of the SIRA add the words “as workman employed by the Railway and Pakistan Post”. The Committee had also observed that the wording in section 1(3)(b)) of the BIRA, KPIRA, PIRA and SIRA “shall not apply to persons employed in the administration of the State other than those employed as workmen by the Railway and Pakistan Post” could imply that certain persons employed in public enterprises are deemed employed in the administration of the State and excluded from the scope of the laws, and had requested the Government to provide information in this regard. The Committee notes the Government’s indication that: (i) the Committee’s comments are noted for future progress and development of legislation and the respective Governments with the support of the social partners are doing the necessary to address the anomalies and ambiguities in the legislation; (ii) the employees of “Authorities”, “Autonomous bodies” and state corporations in ministries and provincial governments with certain exceptions are covered under industrial relations laws; (iii) the workers of the “State administration” and their attached departments where workers are covered under the definition of civil servants do not form unions under the industrial relations laws, but they can establish “associations”; for the last two decades these associations have been very active, the movement of Clerks Association and All Pakistan Lady Health Workers Welfare Associations being two prominent examples; (iv) persons employed in public enterprises are within the scope of the existing industrial relations laws as these laws are applicable to all establishments, either public enterprises/government institutions or private limited companies, except those which are excluded; the only test is the status of the person employed. If the person fulfils the requisites of being a workman under the definition of the law, they fall within the scope of the law; (v) in Khyber Pakhtunkhwa, the public servants employed in the administration of the State who temporarily join public entrepreneurs are excluded from the ambit of KPIRA as they fall within the scope of Civil Establishment Code/Civil Servant Act, 1973; and (vi) in Sindh, workmen employed in government departments like agriculture, irrigations, union councils and town committees, and the Karachi Development Authority, enjoy the right of association and have formed unions in their respective departments.

The Committee notes, in particular, the Government’s indication that in all establishments including the public enterprises, only “workmen” are within the scope of the industrial relations laws. It further notes that pursuant to the “explanation” of section 2(ix)(d) and (e) of the IRA; section 2(i), (iv) and (v) of the BIRA, section 2(vii)(d) and (e) of the KPIRA and section 2(viii)(d) and (e) of the PIRA and SIRA, officers and employees of federal and provincial governments or local authorities who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff who have been notified for this purpose in the official Gazette, shall be deemed to fall in the category of “employers” and in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof is considered an employer. The Committee notes with concern that the industrial relations acts state that the rights provided in the Convention, including the right to represent the members for collective bargaining purposes are recognized only for workmen’s trade unions (sections 19 and 20 of the IRA; section 24 of the BIRA, KPIRA, PIRA and SIRA) thus excluding secretarial, supervisory or agency staff in governments and every director, manager, secretary, agent or officer or person concerned with the management of any other establishment from the right to collective bargaining. The Committee notes in this respect the PWF’s observation that by virtue of the narrow definition of worker and workman, and pursuant to sections 31(2) of the IRA and 17(2) of the BIRA, KPIRA, SIRA and PIRA, a workman on promotion has to leave the trade union and become deprived from the benefit of collective bargaining and collective agreement.

Taking due note of the information provided by the Government, the Committee again emphasizes 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 (Article 6 of the Convention). In particular, the Committee recalls that the exceptions relating to the armed forces and the police do not automatically apply to all employees who may carry a weapon in the course of their duties or to civilian personnel in the armed forces, fire service personnel, and members of the security services of civil aviation companies, workers engaged in security printing services and members of the security or fire services of oil refineries, airports and seaports. The Committee also considers that by depriving all managerial, secretarial and agency employees in both public and private sectors, who are neither members of armed forces or the police, nor engaged in the administration of the State from the right to collective bargaining, the federal and provincial industrial relations laws fail to respect the Convention in its full personal scope of application. Recalling its repeated requests in this respect, the Committee urges the Government to ensure that it, as well as the governments of the provinces, 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, fully enjoy the rights enshrined in the Convention.

Export processing zones (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 proposed rules were shared with the investors of the EPZ Authority (EPZA) as any change in the incentive package under which an investment/scheme has been sanctioned in a zone shall not be made except where such change is more advantageous to the investors and is also accepted by them. The Government adds that any change in the EPZA law would involve formal endorsement of the Board of the EPZA followed by the approval of Parliament and the matter is still being discussed at a higher level in order to carve out a strategy to amend the law. Recalling that for the past 13 years, the Government has indicated that it is in the process of drawing up rules that would grant the right to organize to EPZ workers, the Committee deeply regrets the lack of progress in this regard. Recalling that workers in the EPZs should benefit from the rights guaranteed under the Convention, and that the deprivation of workers from the right to organize should not be considered as an incentive for investors, the Committee urges the Government to take the necessary steps to ensure that the new Rules guarantee the right to organize, to accelerate the process of their drafting and approval and to provide detailed information on the progress made.

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 Committee notes the Government’s indication that in a tripartite meeting held in August 2018 at the Ministry of Overseas Pakistanis and Human Resources Development, it was agreed that the Ministry will submit a proposal for amendment on section 27-B to the Government. The Government further indicates that at the end of this meeting it was decided to permit only those union activities during office hours that relate to redressal of grievances. Recalling that for the past 16 years it has been requesting the Government to repeal the penal sanctions provided for in section 27-B, the Committee notes with concern that the outcome of the tripartite meeting seems to fall short of its longstanding request. It therefore urges the Government to take all the necessary measures to repeal section 27-B so as to enable the workers in the banking sector to exercise trade union activities, with the consent of the employer, within working hours.

Article 4. Collective bargaining. The Committee previously noted that, according to section 19(1) of the IRA, and sections 24(1) of the BIRA, KPIRA, PIRA and SIRA, if a trade union is the only one in the establishment or group of establishments (or industry, in the BIRA, KPIRA, PIRA and SIRA), 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 former industrial relations legislation. The Committee notes the Government’s indication that the purpose of the above-cited provisions is not to give a hard time to genuine unions and to restrict the only trade union to act as a Collective Bargaining Agent (CBA), but to restrict and discourage the fake and bogus unions. No ballot is held for a single union to prove one-third strength, it is up to the satisfaction of the Registrar and usually a simple procedure (signatures of members and workmen) is adopted. The Government further indicates that the removal of the requirement of one-third majority may give rise to the menace of pocket unionism through small unrepresented and planted collective bargaining agents, working for the interest of the management and against the workmen, and if small unions are given the right of collective bargaining, no union will vie to get a status of CBA. Taking due note of the information provided by the Government, the Committee recalls in this respect that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Committee therefore is not requesting the Government to remove the one third majority requirement for the acquisition of the exclusive CBA status. However, the Committee considers that if no union in a specific negotiating unit meets the required threshold of representativeness to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. The Committee urges 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 the collective bargaining agent, collective bargaining rights are granted to the existing unions, jointly or separately, at least on behalf of their own members. The Committee underlines the importance that the governments of the provinces take measures in the same direction.

The Committee notes that sections 62(3) of the IRA, 25(3) of the KPIRA and PIRA, 25(2) of the SIRA and 30(3) of the BIRA, provide that, after the certification of a Collective Bargaining Unit (CBU), no trade union shall be registered in respect of that unit except for the whole of such a unit. It further notes that pursuant to section 62 of the IRA, 30 of the BIRA, respectively National and Provincial Industrial Relations Commission is competent for determination of collective bargaining units; and that pursuant to section 25 of the KPIRA and the PIRA, the Labour Appellate Tribunal and pursuant to section 25 of the SIRA, the Registrar are competent in this regard. The decisions on determination of collective bargaining units are appealable before the full bench of the Commission pursuant to IRA and BIRA, before the Supreme Court pursuant to KPIRA and PIRA, and before the Labour Appellate Tribunal pursuant to SIRA. The Committee notes that these provisions can entail the loss of status of collective bargaining agent for previously certified unions as a result of a decision in which the parties play no role, and that one such case is mentioned in ITUC 2017 observations. The Committee recalls that it had noted similar provisions under the previous IRA according to which the NIRC could determine or modify a collective bargaining unit on an application made by a workers’ organization or reference made by the federal Government, and had requested the Government to take the necessary measures to ensure that under the new industrial relations legislation, the choice of collective bargaining unit can be made by the social partners, since they are in the best position to decide the most appropriate bargaining level. The Committee regrets that the federal and provincial laws adopted subsequently reproduced the previous provision. The Committee requests the Government to ensure that the necessary measures are taken by the federal and provincial governments to amend the legislation, so that the social partners can play a part in the determination on modification of the collective bargaining unit is made by the social partners themselves and to inform on the progress made in this regard.

The Committee had previously noted that: (i) 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 and to help workers in the settlement of their problems (sections 23 and 24 of the IRA, 33 of the BIRA, 29 of the KPIRA and 28 of the PIRA); (ii) works councils (bipartite bodies), which are established in every undertaking employing over 50 workers, have multiple functions (sections 25 and 26 of the IRA, 39 and 40 of the BIRA, 35 and 36 of the KPIRA, and 29 of the PIRA and SIRA), and its members are either nominated by a collective bargaining agent or, in the absence of a collective bargaining agent, elected (PIRA and SIRA) or “chosen in the prescribed manner from amongst the workmen engaged in the establishment” (IRA, BIRA and KPIRA); and (iii) management shall not take any decision relating to working conditions without the advice of workers’ representatives, who can be nominated (by a collective bargaining agent) or be elected (in the absence of a collective bargaining agent) (section 27 of the IRA, 34 of the BIRA, 30 of the KPIRA and 29 of the PIRA and SIRA); and (iv) joint management boards shall 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. (sections 28 of the IRA, 35 of the BIRA, and 31 of the KPIRA). These functions are assigned to works councils under the PIRA and SIRA (section 29(5)). The Committee had requested the Government to ensure that it, as well as the governments of the provinces, take appropriate measures to guarantee that, in the absence of a collective bargaining agent, all workers’ representatives sitting on the above entities are being elected, and that the existence of elected workers’ representatives is not used to undermine the position of the trade unions concerned or their representatives. In this regard the Committee notes the Government’s indication that: (i) in cases where there is no collective bargaining agent, the employer shall hold elections to elect the representatives of workmen for the works council by a notice and procedure laid down in Rules; and (ii) in a meeting arranged to discuss the recommendations of the Committee all stakeholders agreed that the alternate system for determination of workers’ representatives in establishments where no labour union was available could be made more effective through reform. Therefore all representatives of Provincial Labour Departments were requested to discuss the issue in the meetings of their respective PTCCs. The Committee notes with interest the Government’s indication that worker members of the work councils are elected and requests the Government to provide a copy of the Rules that provide the notice and procedure for their election. However, the Committee considers that, where there is no collective bargaining agent, the fact that the trade union can seek to persuade the workers during the elections to vote for its members to be represented in the above entities does not fully eliminate the risk of the union being undermined by workers’ representatives. Noting that a possibility of reform is being considered within the PTCC’s, the Committee requests the Government to ensure that it, as well as the governments of the provinces, guarantee that the existence of elected workers’ representatives is not used to undermine the position of the trade unions concerned or their representatives. It also requests the Government to submit a copy of the Rules providing the notice and procedure for the election of the workers’ representatives in the work councils.

Compulsory conciliation. Having noted that compulsory conciliation is required by law in the collective bargaining process, the Committee had previously observed that the conciliator is appointed either directly by the Government (sections 43 of the BIRA, 39 of the KPIRA, 35 of the PIRA and 36 of the SIRA) 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). It had underlined 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 partners in the system. The Committee notes the Government’s indication that it agrees with the Committee’s comment and the current procedure for appointment of conciliators is satisfactorily working. The Government further transmits the responses of the governments of Khyber Pakhtunkhwa, Punjab, Sindh and the National Industrial Relations Commission, all stating that the process is working well, that no complaint has been received from any party and that if there is any complaint of partiality, appropriate mechanisms are available to the aggrieved party. The Committee takes note of the information provided by the Government.

Concerning section 6 of the IRA, the Committee refers to its comments made under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in the direct request.

Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

The Committee expects that all necessary measures will be taken to bring the national and provincial legislation into full conformity with the Convention and requests the Government to provide information on all steps taken or envisaged in this respect. The Committee notes that the ILO project financed by the Directorate-General for Trade of the European Commission to support GSP+ beneficiary countries to effectively implement international labour standards is being implemented in Pakistan and trusts that the project will assist the Government in addressing the issues raised in this observation.