Observation (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

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The Committee notes the observations of the International Transport Workers’ Federation (ITF) received on 2 July 2020 and the Government reply thereto. In its previous comment, the Committee had urged the Government to investigate the 2015, 2017 and 2018 ITUC allegations of violence against workers and their arrest, detention, and prosecution for trade union activities, and to ensure that sanctions are imposed on law enforcement forces. The Government responds that even though most of the sectors concerned are out of the ambit of the Ministry of Overseas Pakistanis & Human Resource Development (hereafter MOP&HRD) as well as Labour Departments of the Provinces, the matter has been referred to the concerned quarter and information will be provided as soon as received by the Ministry. The Committee notes with deep regret that seven years after the communication of the first allegations brought up by the ITUC, which concern very serious violations of the workers’ right to life and civil liberties, the Government has once again failed to report any investigation into the violent conduct of the law enforcement forces, the killing of two workers on 2 February 2016 and the alleged kidnapping of four union leaders and members on 3 February 2016 in connection with the Pakistan International Airlines (PIA) labour dispute. Therefore, the Committee once again urges the Government to ensure that investigations are conducted by the public authorities into the 2015, 2017 and 2018 ITUC allegations and that sanctions are imposed against law enforcement forces responsible for use of violence against workers.

The Committee notes the adoption of the Balochistan Industrial Relations Act No. XIX of 2022 (hereafter, BIRA 2022) on 22 June 2022, which addresses several issues raised in its previous comments.

The Committee also notes that the Committee on Freedom of Association referred to it the legislative aspects of Case No. 2096 (Report No. 392, October 2020, paragraph 109). These matters are discussed below.

Articles 2–9 of the Convention. The scope of the Convention. Excluded categories of workers. In its previous comment, the Committee had noted that sections 1(3) of the Industrial Relations Act (IRA) 2012, the Balochistan Industrial Relations Act (BIRA) 2010, the Khyber-Pakhtunkhwa Industrial Relations Act (KPIRA) 2010, the Punjab Industrial Relations Act (PIRA) 2010, and the Sindh Industrial Relations Act (SIRA) 2013 excluded many categories of workers from their scope. The Government reiterates in this regard that: (i) the exceptions provided in the federal and provincial acts are specific in nature and need to be imposed only in the cases where any action may lead to a serious security breach or an irreparable loss to the public at large; and (ii) unregistered unions/associations are formed under KPIRA 2010, and workers in private security firms can form unions. The Committee notes that only in Balochistan has there been a legislative change regarding the excluded categories of workers, where the exceptions retained are the following: (a) section 1(5) of BIRA 2022 allows the Government to impose reasonable restrictions on the exercise of the right to form associations or unions in any public sector organization, in the interest of sovereignty or integrity of Pakistan, for such time as it may deem proper; (b) section 1(6) provides that the act “shall not apply to Police, Levies or any of the Defense Services of Pakistan or any services or installations exclusively connected with or incidental to armed forces of Pakistan and essential services”. The Committee notes with interest that many previously excluded categories in Balochistan are now brought within the scope of the industrial relations legislation. Nevertheless, it notes that the exceptions retained in the new law are still larger than the ones authorized under the Convention:

(i)regarding section 1(5) of the BIRA 2022, the Committee recalls that the Convention contains no provisions allowing the invocation of a state of emergency to justify exemption from the obligations arising under it or any suspension of their application. Any such exemption cannot be used to justify restrictions on civil liberties that are essential to the proper exercise of trade union rights, except in circumstances of extreme gravity and on condition that any measures affecting the application of the Convention are limited in scope and duration to what is strictly necessary to deal with the situation in question. The Committee notes with concern that the language of section 1(5) referring to the “interest of sovereignty and integrity of Pakistan” evokes concepts broader than a state of emergency and does not clearly indicate any limitation in time, thereby giving a too broad discretion to the government to impose restrictions on the rights guaranteed in the Convention to public sector employees. Considering that BIRA 2022 was adopted after the judgment of the High Court of Balochistan dated 24 June 2019 (C.P Nos. 669/2013 & 400/2015), in which the Court ruled that the right to form trade unions is not available to civil servants, the Committee firmly recalls that it has always considered that the right to establish and join organizations should be guaranteed for all public servants and officials, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings;
(ii)concerning the reference to “any services or installations exclusively connected with or incidental to armed forces of Pakistan” in section 1(6), the Committee recalls that the exceptions under Article 9 of the Convention do not include civilian personnel in the armed forces, nor the civilian employees in the industrial establishments of the armed forces; and
(iii)concerning the reference to “essential services” in section 1(6), the Committee is bound to repeat its previous comments concerning the distinction between the right to establish and join a union, of which only the armed forces and the police can be deprived, and the right to strike, which may be restricted in certain categories of public servants, essential services in the strict sense of the term, and situations of acute national or local crisis. While the exercise of the right to strike of the workers in essential services can be restricted or even prohibited, their exclusion from the right to establish and join unions is an infringement of the Convention.

Regarding trade union rights of the associations of public officials and employees of publicly owned undertakings, the Committee notes the observations of the ITF denouncing the derecognition of Pakistan Airline Pilots’ Association (PALPA), the sole representative organization for pilots in Pakistan, and unions representing other workers in PIA, as well as the termination of all working agreements through a notice of the employer communicated on 30 April 2020. This notice indicated that except for the Collective Bargaining Agent (CBA), no other union, society or association will be recognized as representative of all or any category of employees. In reply, the Government indicates that: (i) PALPA is neither a registered union, nor the recognized CBA under the IRA 2012, it is an association of persons registered under the Societies Registration Act (SRA) 1860; (ii) any agreement with it is a civil contract only, which can be terminated by any party; (iii) the company does not intend to stop trade union and collective bargaining activities in the establishment. The Committee recalls in this regard that as it had noted in its 2016 observation concerning the application of the Convention in Pakistan, the Government had indicated that public officials and employees of publicly owned undertakings which are excluded from the purview of the industrial relations legislation, get coverage under article 17 of the Constitution as enforced by the SRA and had referred to PALPA as an example of such associations. In view of the Government reply to the ITF observations, the Committee is bound to note that the categories of workers excluded from the industrial relations legislation cannot exercise the rights enshrined in the Convention by forming associations under the SRA. In view of the above,while welcoming certain legislative changes in Balochistan, the Committee urges the Government to ensure that the federal and provincial governments take the necessary measures to revise the IRA, the BIRA, the KPIRA, the PIRA and the SIRA so that all categories of workers can enjoy their rights under the Convention, the only admissible exception – which must be construed in a restrictive manner – being the police and the armed forces. It further urges the Government to ensure that the government of Balochistan takes all the necessary measures, including legislative, to guarantee that civil servants are able to form and join organizations of their own choosing freely and to engage in activities for the furtherance and defence of their members’ interest. Pending legislative reform, it also urges the Government to take all the necessary measures to ensure that the associations of currently excluded categories of workers can represent the interests of their members in relation to the employer and the authorities. The Committee requests the Government to provide information on the measures taken in this respect.

Managerial employees. The Committee notes that sections 2 of IRA, BIRA, KPIRA, PIRA and SIRA contain an excessively broad definition of the term “employer”, and a correspondingly restrictive definition of the term “worker” or “workman”. The definition of “employer” includes any person responsible for management, supervision, and control of the establishment. In a department of the federal government or the government or local authority, officers and employees who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff shall be deemed to fall within the category of “employers”. Pursuant to IRA, PIRA and SIRA (but not KPIRA and BIRA 2022), in any other establishment, every director, manager, secretary, agent or officer or person concerned with the management is considered an employer. The term worker is defined in contrast as a person not falling within the definition of employer, who is employed – including as a supervisor or apprentice – in an establishment or industry for hire or reward.

The Committee further notes that the effect of these definitions on workers’ organizations and on trade union rights of managerial staff is crystallized in sections 31(2) of the IRA and 17(2) of its provincial variants, which provide that an employer may require that a person, upon appointment or promotion to a managerial position, shall cease to be and disqualified from being a member or official of a trade union of workmen. BIRA 2022 additionally provides that the employer may impose such a requirement, provided that no promotion is effected against the will of the worker or to prejudice his/her right to trade unionism. The Government indicates in this regard that: (i) BIRA 2022 provides that managerial and administrative staff and staff of occupational groups shall have the right to form an association/organization or to join the association/organization of their own choice; (ii) the managerial employees have all those rights of association that employers have under the laws, namely that they can establish and join associations of their choice without previous authorization and establish and join federations and confederations; and (iii) the employees in managerial capacity have the status of employer as they represent employers at all legal fora, hence they cannot be treated at par with the workers. The Committee notes that the legal provisions referred to above deprive large categories of administrative, agency and managerial staff from their trade union rights as employees, because employers’ associations by definition represent employers who are workers’ counterparts and cannot become collective bargaining agents, undertake collective bargaining, raise an industrial dispute, give a strike notice, and have access to conciliation and voluntary arbitration proceedings. They also have a negative impact on workers’ organizations by significantly reducing the number of their potential members. The Committee recalls that it has always considered that: (i) senior managerial staff may be denied the right to join the same organizations as other workers, provided that they have the right to form their own organizations to defend their interests; and (ii) where managerial staff are denied the right to join the same organizations as other workers, the category of executive and managerial staff should not be so broadly defined as to weaken the organizations of other workers by depriving them of a substantial proportion of their actual or potential membership. The Committee welcomes the change introduced by the adoption of section 3(e) of BIRA 2022, that enables managerial employees to establish their own organisations which are distinct from employers’ and workers’ organisations. However, it notes with concern that despite its longstanding requests, this right is not yet guaranteed for them in the federal act and provincial acts other than the BIRA. Regarding the broad terms of the definition of “employer”, the Committee notes that they remain unchanged in the industrial relations legislation. In view of the above,the Committee urges the Government to ensure that the federal and provincial acts are revised with a view to: (i) enabling senior managerial workers to establish and join organizations that can adequately defend their occupational interests; and (ii) guaranteeing that workers’ organizations are not deprived of a substantial proportion of their actual or potential membership as a result of the current legal definitions of “workmen” and “employers”. It requests the Government to provide information on the measures taken in this regard.

Export processing zones (EPZs). For many years, the Committee has been requesting the Government to take the necessary steps to ensure that the workers in EPZs can benefit from the rights enshrined in the Convention. The Committee recalls that these workers were excluded from the scope of industrial relations legislation (Industrial Relations Ordinance, 1969) pursuant to clause 7 of S.R.O 1004(1)/82, dated 10 October 1982. The Committee notes the Government’s indication that the Federal Government partially withdrew S.R.O 1004(1)/82, except clause 7, through a notification dated 5 August 2022. The Government indicates that with this notification, eight labour-related laws which were not applicable to EPZs became applicable; however, the only exemption remains the Industrial Relations Ordinance, 1969. The Government adds that the EPZ (Employment and Service Condition) Rules 2009 have been finalized and workers are accordingly given rights guaranteed under the Convention, including the right to strike. Taking due note of the information submitted by the Government, the Committee also notes that no copy of the 2009 Rules is attached to the Government report. Therefore, it cannot examine the extent to which these rules guarantee the rights enshrined in the Convention. The Committee requests the Government to submit a copy of the final version of EPZ (Employment and Service Condition) Rules 2009. It also requests the Government to provide information on the exercise of trade union rights in the EPZs, including the trade unions registered and the number of unionized workers, as well as any instances in which trade unions have been refused registration and the reasons therefor.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing. The Committee had previously noted that pursuant to the IRA and its provincial variants, no worker shall be entitled to be a member of more than one trade union at any one time and had requested the Government to revise the relevant legal provisions. It notes that the Government reiterates its previous indications in this regard: i) as per section 48 of the Factories Act, adult workers shall not be employed to work in any factory on any day on which they have already been working in any other factory; ii) the restriction of membership in more than one trade union is very restrictive but vital for healthy trade unionism; in the same establishment it would result in overlapping membership of more than one rival trade union which generally have to contest referendums against each other for determination of CBA; iii) pursuant to a portion of Form-C of the Khyber Pakhtunkhwa Industrial Relations Rules, 1974, while the same person cannot become a member of more than one union in the same establishment/group of establishments/industry to which the trade union relates, this is possible if the establishments are different.

The Committee recalls in this regard that it is not a requirement of the Convention that workers should have the right to join more than one union relating to the same establishment. However, as mentioned in its previous comments, it considers that workers who are engaged in more than one job – in different establishments – should be allowed, to join the corresponding union of their choice, that is more than one union; and in any event workers should be able, if they so wish, to join trade unions at the national and branch level as well as the enterprise level at the same time. Compliance with this principle will not entail overlapping memberships. The Committee notes with satisfaction, that section 3(a) of BIRA 2022 restricts membership in more than one trade union at any one time at the same workplace only, which brings this act in line with the above principle. The Committee urges the Government to take the necessary measures to ensure that IRA, KPIRA, PIRA and SIRA are also amended with a view to bringing them into conformity with the above principles. It requests the Government to provide information on the measures taken in this regard.

Article 3. The right of workers’ and employers’ organizations to organize their administration and activities and to formulate their programmes. Rights of minority unions. In its previous comments, the Committee had noted that certain rights, in particular to represent workers in any proceedings and to check-off facilities, were granted only to CBAs, that is to say the most representative trade unions. The Committee notes the Government’s indication that the check-off system will help minority unions in keeping proper record of subscription of their members. Concerning the provision of other rights of CBA to minority unions, the Government states that it would take away the difference between CBA and other unions but adds nevertheless that section 24(1) of BIRA 2022 provides that a trade union shall be permitted to act as a CBA on behalf of its members. The Committee further notes that section 27(1) of BIRA provides that if a CBA so requests, the employer shall provide check-off facilities to it; section 36(1) of BIRA concerning individual grievances provides that workers may bring individual grievances to the notice of the employer through their trade union or CBA, but section 36(4) concerning proceedings before the Labour Court refers to the CBA only; and section 37(1) of the BIRA 2022 concerning negotiations relating to collective differences and disputes refers to CBA or trade union where no CBA exists, but section 37(3) concerning notice of strike refers to the CBA only. The Committee notes that it is not clear whether these BIRA provisions referring to CBA, mean the CBA on behalf of the union’s own members (section 24(1)), which can be any minority union, or the CBA for the establishment, that is to say the most representative trade union (section 24(2-11)). It requests the Government to clarify this matter. The Committee regrets that despite its repeated requests, the Government does not indicate any progress concerning the rights of minority unions. The Committee is therefore bound to reiterate that the distinction between most representative and minority unions should be limited to the recognition of certain preferential rights (for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations); however, the distinction should not have the effect of depriving those trade unions that are not recognized as being among the most representative, of the essential means of defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), of organizing their administration and activities, and formulating their programmes (including giving notice of and declaring a strike), as provided for in the Convention. In view of the above,the Committee once again urges the Government to take the necessary measures to ensure that federal and provincial legislation is amended as soon as possible, with a view to guaranteeing full respect for the abovementioned principles. It requests the Government to provide information on developments in this regard.

Right of workers’ and employers’ organisations to draw up their constitutions and freely elect their representatives. Banking sector. In its previous comments, the Committee had noted that section 27-B of the Banking Companies Ordinance of 1962 restricted the possibility of becoming an officer of a bank union only to employees of the bank in question under penalty of up to three years’ imprisonment, and had urged the Government to amend the legislation. The Committee recalls that this longstanding issue is also the object of Case No. 2096 before the Committee on Freedom of Association, which was first examined in October 2000. The Committee notes with deep regret that the Government does not provide any information concerning developments in this regard. It is therefore bound to reiterate that provisions like section 27-B infringe the right of organizations to draw up their constitutions and to freely elect representatives by preventing qualified persons (such as full-time union officers or pensioners) from being elected and by creating a risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. Therefore, the Committee once again urges the Government to take the necessary measures to amend the legislation by making it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirements a reasonable proportion of the officers of an organization, along the lines of section 8(d) of the IRA. The Committee requests the Government to provide information on any developments in this regard.

Right of organizations to organize their administration and to formulate their programs. The Registrar’s powers of investigation, inspection, and inquiry into the affairs of a trade union. In its previous comments, the Committee had noted that the legislation conferred extensive powers of inspection, inquiry, and investigation “as he/she deems fit” to the Registrar regarding the internal affairs of unions and requested the Government to make legislative amendments to limit these powers. The Government indicates in this regard that: i) the Registrar inspects the accounts and records of unions to avoid malpractice and ensure transparency. The purpose of inquiry into the unions’ affairs is limited to unveiling certain crucial facts and figures; ii) in the province of Sindh, in certain cases huge funds of the union were spent lavishly either by the outgoing or incoming executive but were not accounted for. The Registrar’s power to check the accounts does not mean interference in the affairs of the union but is to ensure that expenditure was made properly; and iii) the Government of Khyber Pakhtunkhwa commits that the financial powers of the Registrar under the KPIRA might be minimized. While noting that the Government once again indicates that the purpose of the Registrars’ inquiry is limited and their power does not mean interference, the Committee recalls that it considers that the wording of the relevant legislative provisions empowering the Registrar to proceed to inquiry “as he/she deems fit” is excessively broad and not compatible with the principle enshrined in Article 3 of the Convention. The Committee notes with concern that the Government does not indicate any progress and furthermore section 15(e) of BIRA 2022 contains no change in this regard. It therefore once again requests the Government to ensure that the federal and provincial legislation is amended with a view to explicitly limiting the powers of financial supervision of the Registrar to the obligation of submitting annual financial reports and to verification in cases of serious grounds for believing that the actions of an organization are contrary to its rules or the law or in cases of a complaint or call for an investigation of allegations of embezzlement from a significant number of workers (2012 General Survey on the fundamental Conventions, paragraph 109).

Right of organizations to freely elect their representatives. Disqualification criteria. In its previous comments the Committee had noted that the IRA and its provincial variants establish excessively broad disqualification criteria for being elected or holding union office and had requested the Government to amend the legislation. The Committee recalls that the following grounds for disqualifications are provided in the legislation: i) conviction and prison sentence for two years or more, or in an offence involving moral turpitude under the Pakistan Penal Code (PPC), unless a period of five years has elapsed after the completion of the sentence (IRA section 18); ii) conviction for heinous offence under the PPC (section 7 of the BIRA, KPIRA, PIRA and SIRA); iii) violation of the National Industrial Relations Commission or Labour Court order to stop a strike (section 44(10) of the IRA, 59(7) BIRA, 60(7) KPIRA, 56(7) PIRA, and 57(7) SIRA; iv) conviction for embezzlement or misappropriation of funds (7 cum 69 PIRA and 7 cum 70 of the SIRA); and v) conviction for contravention or failure to comply with the provisions of KPIRA (7 cum 74 KPIRA). The Committee notes the following information provided by the Government in this regard: i) the grounds for disqualification in IRA are reasonable to protect the interest of discipline and good governance at enterprise level. The offences of theft, embezzlement and moral turpitude seriously damage the relationship of trust and mutual respect between employers and workers as well as such person’s ability to represent workers; ii) the grounds for disqualification under PIRA just cover the crucial minimum requirements as they only extend to a certain specified period; iii) the Governments of Khyber Pakhtunkhwa and Sindh will discuss the matter in the Provincial Tripartite Consultative Committee; and iv) the Government of Balochistan has proposed to omit disqualification for embezzlement and misappropriation of funds. The Committee welcomes that in BIRA 2022, disqualification for embezzlement and misappropriation of funds is indeed removed; however disqualification for heinous offence and violation of a court order to stop a strike are maintained. Noting with concern that the Government does not report any progress concerning this and other disqualification criteria noted herein, the Committee once again 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. 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 offences alluded to necessarily constitute acts of such a nature as to be prejudicial to the performance of trade union duties. The Committee therefore once again urges the Government to ensure that the federal and provincial legislation is amended so as to make the grounds for disqualification more restrictive and to provide information on developments in this regard.

The Committee is raising other matters in a request addressed to the Government.