Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

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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Articles 2–9 of the Convention. The scope of the Convention. Excluded categories of workers. Informal economy workers. The Committee notes the Government’s indication that in the non-agriculture sector, 72.5 per cent of workers are engaged in the informal sector. The Committee further notes that according to the Government, Industrial Relations Act (IRA) 2012, the Balochistan Industrial Relations Act (BIRA) 2022, the Khyber-Pakhtunkhwa Industrial Relations Act (KPIRA) 2010, the Punjab Industrial Relations Act (PIRA) 2010 apply to formal sector workers, and workers of informal sector can only establish or join associations established under Societies Registration Act, 1860. The Committee notes that in reply to the International Trade Union Confederation (ITUC) observations of 2020, the Government indicates that associations formed under Societies Registration Act do not have the capacity of representing the occupational interests of their members in relation to the employer and the authorities to the same extent, nor do they benefit from the same legal guarantees as a trade union formed under IRA and its provincial variants. The Committee recalls that workers in the informal economy have the right, without distinction whatsoever, to establish and join organizations freely and their organizations should benefit from all the guarantees enshrined in the Convention. The Committee therefore requests the Government to take all necessary measures, including legislative measures at the federal and provincial levels, with a view to guaranteeing the rights of informal economy workers under the Convention, for example by including them within the scope of the IRA and its provincial variants. The Committee requests the Government to provide information on measures taken in this regard. Noting further that section 1(3) of the IRA, the KPIRA, the PIRA and the SIRA provide that they apply to “all persons employed in any establishment or industry”, but BIRA 2022 has adopted a different language in its section 1(4), providing that it shall apply to “all workers and employers at all workplaces”, a workplace being defined as “any premises, where work is carried out by one or more persons” the Committee requests the Government to clarify whether the wording in section 1(4) of BIRA 2022 extends the scope of the act to informal economy workers whose place of work could be a public street, their home, land refills and the like.

Agricultural and fisheries workers. The Committee had previously noted that agricultural and fisheries workers are excluded from the scope of the IRA, the KPIRA and the PIRA. The Committee notes that according to the Government: (i) the definition of scope of the PIRA does not cover sectors like agriculture and fisheries; (ii) in Khyber-Pakhtunkhwa, despite the absence of express legal coverage of these sectors, there is no bar on registration of their workers’ unions and in practice associations in dairy farms, fisheries and bee-keeping businesses have already been registered; (iii) the IRA does not prevent workers from joining any trade union in any commercial establishment including in agriculture and fisheries; (iv) BIRA 2022 is applicable to all sectors of work. The Committee recalls that the SIRA expressly includes workers employed in fisheries and agricultural establishments in its scope (section 3(1)). The Committee notes that according to the Government, under PIRA, even the establishments formally engaging in these activities are not considered within the scope of the law, while under the IRA and the KPIRA these establishments are implicitly covered and SIRA and BIRA clearly include them. Nevertheless, the Committee notes that a large proportion of agricultural and fisheries workers are not employed in any establishment but engage in their activities in an informal manner. The Committee requests the Government to ensure that the federal and provincial legislation is amended so that all agricultural and fisheries workers, whether engaged in the formal or informal sector, enjoy the rights conferred by the Convention in law and in practice. The Committee requests the Government to inform it of measures taken in this regard.

Self-employed workers. The Committee had previously noted that the industrial relations legislation seems to exclude self-employed workers and had requested the Government to ensure that they can benefit from their rights under the Convention. The Government indicates in this regard that: (i) section 2 of the Trade Organization Act, 2013 defines that a trade organization is formed or intended to be formed with the object of promoting any trade, industry or service or any combination thereof; (ii) in Sindh two unions and one federation of home-based workers were registered; (iii) the Government is striving to bring self-employed persons under the umbrella of the legislation and modalities are being discussed to provide the right of union formation to self-employed persons; and (iv) under the KPIRA several unions/associations were registered for markets, shopkeepers, transport owners, drivers, and goods transport, even though no section of the KPIRA deals with the trade unions of self-employed persons. The Committee notes with interest that the wording in section 1(4) of BIRA 2022 seems to include self-employed workers within the scope of this act. Recalling that the self-employed should benefit from all the guarantees enshrined in the Convention, the Committee requests the Government to provide details about the modalities envisaged under the KPIRA and similar laws in other provinces to provide the right to establish and join unions to self-employed persons and to ensure that the discussions in this regard will soon result in the effective recognition and exercise of their rights under the Convention. The Committee requests the Government to inform it of developments in this regard.

Domestic workers directly recruited by households. The Committee notes that the wording of section 1(3) of the IRA, the KPIRA, the PIRA and the SIRA, seems to exclude domestic workers directly recruited by households – as opposed to those employed by firms – from the scope of these acts and therefore from the right to establish and join organizations of their own choosing. It notes, however, that section 1(4) of the BIRA 2022 seems to include them, as it provides coverage for “workers at all workplaces”. Recalling that under the Convention, domestic workers have the right, without distinction whatsoever, to establish and join organizations freely, and their organizations should benefit from all the guarantees enshrined in the Convention, the Committee requests the Government to adopt the necessary measures to provide them with a legal framework within which they can fully exercise these rights, for example by extending the scope of industrial relations legislation to this group of workers, or by adopting specific laws covering them at the federal and provincial levels. The Committee requests the Government to inform it of developments in this regard.

Tribal areas of Balochistan. In its previous comments, the Committee had noted that the BIRA excluded tribal areas form its scope. The Committee notes with satisfaction the Government’s indication that words “excluding tribal areas” have been omitted from section 1(2) of BIRA 2022, which now reads that “it extends to whole of Balochistan”.

Article 2. Right of workers to establish and join the organization of their choosing. In its previous comments, the Committee had requested the Government to amend section 6 of the IRA, which provides that any trade union may apply for registration “provided that there shall be at least two trade unions in an establishment”. The Committee notes that according to the Government, while in practice, the National Industrial Relations Commission (NIRC) registers trade unions irrespective of whether any one or two unions are already registered with it, the Government is taking steps to amend the IRA. The Committee requests the Government to inform it of developments in this regard.

Restriction to trade union pluralism. Minimum membership requirements. The Committee had previously requested the Government to amend sections 8(2)(b) of the IRA and 6(2)(b) of the provincial acts, which provide that when there are already two unions or more registered in the establishment, group of establishments or industry, no other trade union is entitled to registration unless it has as members not less than 20 per cent of the workers employed in the corresponding unit. The Government indicates in this regard that the matter has been discussed by the provinces with the social partners and: (i) the government of Punjab was of the view that this requirement of 20 per cent of membership for registration is to avoid mushroom growth of ineffective pocket unions as there seems to be no efficacy for a trade union especially in the presence of a certified collective bargaining agent (CBA) union that invariably enjoys the membership of more than 50 per cent of the workers; (ii) in Sindh, the matter was discussed in the Provincial Tripartite Consultative Committee (PTCC) and it was agreed that clause 6(2)(b) of SIRA 2013 be omitted and a new subsection (4) in section 4 be inserted which would provide: “the registration of a contesting union shall be cancelled by Registrar, if the union secures less than 5 per cent of total votes casted in referendum conducted for determination of CBA”; (iii) the government of Balochistan consulted the social partners in PTCC regarding this matter, but they remained unanimous to maintain the requirement of one fifth of total number of workers. The PTCC opined that any removal of this requirement will open the flood gate of pocket unions. The Committee welcomes the agreement reached in the Sindh PTCC and trusts that it will be soon reflected in the adoption of an amendment to the SIRA. Regarding the situation in the other provinces and at the federal level, it once again 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 implies that trade union pluralism must remain possible in all cases. 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. The Committee therefore once again requests the Government to ensure that at the federal level, as well as in the provinces of Balochistan, Khyber-Pakhtunkhwa and Punjab, 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 newly created ones. The Committee requests the Government to provide information on developments in this regard.

Article 3. Right of workers’ organizations to draw up their constitutions and rules, to organize their administration and to formulate their programmes. In its previous comments the Committee had noted that certain provisions of the federal and provincial legislation regulate in detail the internal functioning of trade unions. The Committee recalls in this regard that section 8 of the IRA and section 6 of its provincial variants provide in their subsection 1(j) 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, provide for the frequency of meetings of a union’s executive and general body. The Committee also recalls that the National Industrial Relations Commission (NIRC) (under section 48(2) of the IRA), or the Labour Court (under sections 62(2) of the BIRA 2022, 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 that according to the Government: (i) there is no restriction on the office bearers to punish or expel union members according to their constitution and bylaws under section 6(1)(e) of KPIRA; (ii) the government of Punjab is of the view that there should be some legal restriction on term of union officers, otherwise a union may incorporate 10 or 20 years term in its constitution; (iii) the government of Sindh replied that the two years term of the union officers aims to restore a transparent and fair means to provide all workers the opportunity to contest in elections, and its omission could lead to the transformation of an executive body into a monarchy. The provincial government further indicated that section 60(3) of the SIRA provides protection to the workers in case of illegal strike or lockout; and (iv) the government of Balochistan reported that the Committee’s recommendation was thoroughly discussed in the PTCC meeting; however, worker members emphasized that the limit to the officers’ term should remain in the law. Concerning the KPIRA, the Committee notes that section 63(2) of the same act seems to exclude the application of any contrary provision of the constitution of a trade union. Concerning the legal limit to the term of union officers, it notes that pursuant to the information submitted by the Government, in cases where unions were unable to account for the delay in the mandatory renewal of their officers and could not produce their record, they were guided by the Registrar to dissolve as per the dissolution clause of their constitutions and asked to apply afresh. The Committee notes that in practice, unions who have not managed to renew their officers every two years have been dissolved by the Registrar. The Committee once again recalls that it has always considered that national legislation should only lay down formal requirements respecting trade union constitutions, except regarding the need to follow a democratic process and to ensure a right of appeal for the members. The right of workers’ organizations to draw up their constitutions and rules, to organize their administration and to formulate their programmes means that matters such as setting the period of terms of office, the frequency of the meetings of organs, or sanctions against members should be left to be determined by the unions themselves in their constitutions and by-laws. The Committee therefore once again requests the Government to take the necessary measures to ensure that the federal and provincial legislation is revised in this respect and to provide information of developments in this regard.

Qualification of go-slow as an unfair labour practice. In its previous comments, the Committee had noted that the IRA and its provincial variants outlaw go-slow as an unfair labour practice and had requested the government to ensure that the law is amended in this respect. The Committee notes with satisfaction that BIRA 2022 has omitted go-slow from the list of unfair labour practices and welcomes the Government’s indication that the federal and other provincial acts on the subject will be amended after due consultation with the tri-partite constituents. The Committee further notes that the government of Punjab is of the view that it is not in the national interest to allow intentional go-slow to be legal. The Committee recalls that the restrictions to the forms of strike action including go-slow can only be justified if the action ceases to be peaceful. The Committee expects that sections 32(1)(e) of the IRA and 18(1)(e) of the KPIRA, PIRA and SIRA will be soon amended so as to omit the qualification of peaceful go-slow as an unfair labour practice and requests the Government to provide information on developments in this regard.

Grounds for prohibition or restriction of strikes. The Committee notes the following grounds for restriction or prohibition of strikes in the federal and provincial legislation: (i) sections 42(3) of the IRA, 43(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 the Government can also prohibit a strike 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” (section 45 of the IRA) or in respect of any public utility services, at any time before or after its commencement (sections 45 of the IRA and KPIRA, 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, 58(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: (i) pursuant to section 44 of BIRA 2022, the government shall not prohibit strike or lock except in exceptional situations – essential services, those involved in the administration of the state and police and armed forces, or in situations of national emergency; provided the same will be resolved by conciliation or compulsory arbitration. The provincial government has no more absolute power to declare the strike illegal before or after its commencement; (ii) the federal and other provincial laws would be amended after due consultation with the social partners; (iii) the government of Khyber-Pakhtunkhwa has assured it will take up the matter in the PTCC meeting in the near future; and (iv) the government of Punjab explained that the current law provides that an unnecessary strike which fails to resolve the dispute after 30 days is discontinued and an amicable solution is facilitated by the government in the interest of all stakeholders. The Committee notes with concern that the BIRA 2022, still empowers the government to prohibit a strike that has lasted more than 30 days and its schedule of public utility services, in which a strike is prohibited, still includes services that are not essential services in the strict sense; it further notes with concern that no progress is reported in the other provinces and at the federal level. The Committee recalls that the prohibition of strikes can only be justified: (1) in the public services 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 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. Therefore, the Committee urges the Government to take the necessary measures to ensure that federal and provincial acts are amended so that any prohibition or restriction of the right to strike is brought into conformity with the Convention. The Committee requests the Government to provide information on developments in this respect.

Compulsory arbitration. The Committee notes that: (i) following the prohibition of a strike by the Government pursuant to the sections referred to above, 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 NIRC or Labour Court, as applicable, for adjudication of the dispute (sections 42(2) of the IRA, 43(2) of the BIRA, 44(2) of the KPIRA, 40(2) of the PIRA and 41(2) of the SIRA); (iii) pending adjudication, the NIRC/Labour Court can prohibit the continuation of the existing strike action (sections 61 of the IRA, 57 of the BIRA, 58 of the KPIRA, 54 of the PIRA and 55 of the SIRA); and, (iv) section 42 of the BIRA provides that if the board of conciliators fails to settle a dispute in a public utility service or related to an industry of high economic and social importance, and the parties do not propose a panel of three arbitrators by consent, the government may appoint a retired judge of the Supreme Court for arbitration in the said dispute. The award of the arbitrator shall be final and valid for a period not exceeding two years as may be fixed by the arbitrator. The Government indicates in this regard that the provisions in the federal and provincial laws allow prohibition of continuation of an existing strike by a court of competent jurisdiction when the case is pending adjudication, however, the matter will be placed before the FTCC and all PTCCs and after their recommendations, an amendment in law will be proposed to the competent authority. The Committee notes that the provisions of federal and provincial acts allow the NIRC or the Labour Court to prohibit virtually any strike pending adjudication of the dispute; and in Balochistan, the new law provides for compulsory adjudication in disputes in public utility services, which include services such as oil production, postal services, railways, and airways, or in disputes related to “an industry of high economic and social importance”. The Committee notes with concern that this system amounts to a denial of the right to strike as it makes it possible to prohibit virtually all strikes or to end them quickly. It recalls that recourse to compulsory arbitration is admissible only in cases where the strike can be restricted or even prohibited, or at the request of both parties to the dispute (see the 2012 General Survey on the fundamental Conventions, paragraph 153). Noting the Government’s renewed expression of intent to place this matter before the tripartite consultative committees, the Committee urges the Government to take all the necessary measures so that the federal and provincial legislation is amended with a view to restricting recourse to compulsory arbitration in line with the principles outlined above. The Committee requests the Government to inform it of developments in this respect.

Penal sanctions. The Committee notes 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 68(3) of the KPIRA, 64(3) of the PIRA and 65(3) of the SIRA), and up to 25,000 PKR in Balochistan (section 67(3) BIRA) and/or imprisonment which may extend to 30 days (section 67(3) of the IRA); and (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, 59(7) of the BIRA, 60(7) of the KPIRA, 56(7) of the PIRA and 57(7) of the SIRA). The Government indicates in this regard that the government of Khyber-Pakhtunkhwa has informed that no penalty is imposed against any worker for having carried out a peaceful strike, and cancellation of a trade union registration can only be initiated if workers are wilfully breaking the orders passed by the Labour Court. The governments of Punjab and Balochistan indicated that penalties are imposed only for illegal strikes involving threats, assault, physical injury, and the like. The Government adds that the federal law has a similar position. Taking note of the Government’s indications, the Committee is nevertheless bound to recall that as it has noted above, the legislation allows the restriction or even prohibition of virtually any strike by executive or judiciary authority regardless of its peaceful character; therefore, under the current law, a peaceful strike can be considered illegal, and penalties applied to workers and unions involved in them. The Committee recalls in this regard that it has always considered 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 urges the Government to take the necessary measures to ensure that federal and provincial legislation is amended in light of the principles above and requests the Government to inform it of developments in this regard.

Article 4. Dissolution of organizations. The Committee had previously noted that the registration of a trade union can be cancelled by the Registrar for numerous reasons set out in the federal and provincial legislation and had requested the Government to provide information on occurrences of cancelled registration all over the country since January 2016 and the procedures followed in these cases. The Government indicates that the actions of the Registrar are appealable and therefore the Registrar has no discretionary or arbitrary powers to dissolve unions. Regarding cases where the Registrar cancels the registration of a trade union when, after holding an inquiry, he or she finds that the union has dissolved itself or has ceased to exist (section 11(6) IRA, 12(2) BIRA, 12(3)a KPIRA & PIRA, and 12(3) SIRA), the Government indicates that in instances where the unions remained dormant over a long period with an incomplete record, when they apply for renewal but are unable to account for the delay in mandatory renewals of their officers, they are guided to dissolve their unions as per the dissolution clause of their constitutions and asked to apply afresh. The Committee notes with satisfaction that BIRA 2022 has removed all instances of cancellation of registration by the Registrar, except for the cases in which he finds that the union has dissolved itself or has ceased to exist (section 12(2)). The Committee requests the Government to provide statistical information on occurrences of cancelled registration in all provinces as well as the federal level since January 2016, and the procedures followed for such cases, including the results of all appeals that were taken.

Articles 5 and 6. Right of organizations to establish federations and confederations. In its previous comments the Committee had noted that section14(4) of the IRA provides that no trade union federation or confederation shall be formed and registered having the same, similar, or identical name. Considering 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, the Committee had requested the revision of the legislation. The Committee notes with regret that the Government does not provide any indication regarding this matter. The Committee therefore reiterates its previous request and expects the Government to provide information an all progress made in this respect.