Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 404, Octobre 2023

1. 429. The complaint is contained in communications from the Pakistan Workers Federation (PWF) dated 1 October 2019 and 2 September 2021.
2. 430. The Government forwarded its observations in communications dated 11 and 18 October 2021, 17 May 2022 and 12 September 2023.
3. 431. Pakistan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 432. In its communication dated 1 October 2019, the PWF expressed its deep concern about the cancellation of 62 trade unions in the Province of Balochistan of Pakistan in pursuance of a decision dated 24 June 2019 of the Provincial High Court whereby direction has been issued to the Chief Secretary as well as secretaries of all government departments to move towards the cancellation of trade unions and their registration in all public departments. In the complainant’s view, this move is highly disturbing for the trade union movement in Pakistan and elsewhere, since such decision is contrary to the provisions of Conventions Nos 87 and 98 ratified by Pakistan, and inconsistent with the provisions of the Provincial Industrial Relations Act and the Federal (trans-provincial) Industrial Relations Act, 2012. The decision also contravenes the law interpreted and laid down by the apex Supreme Court, according to which public sector organizations do not fall in the ambit of administration of the State and are performing non-regal function.
2. 433. By holding that the employees of public sector organizations can form associations under the Societies Act, 1860, the Balochistan High Court took away their genuine freedom of association and collective bargaining right and pushed them to work as non-governmental organizations. The ruling has met with strong resistance from the labour force and disrupted social peace in the country. The complainant urges the Committee to intervene and request the Federal Government and the Government of Balochistan to withdraw Order No. 45/R&R/DGL W/QTA/1385-1433 dated 12 July 2019 from the Directorate-General of Workers’ Welfare of Balochistan whereby registration of “all the trade unions formed by the employees of Government Departments, Semi Government Departments and Autonomous Bodies.” has been cancelled.
3. 434. The complainant asserts that the cancellation of 62 trade unions in Balochistan has been greatly felt by the global labour movement. It refers particularly to a resolution passed by the International Trade Union Confederation – Asia Pacific (ITUC–Asia Pacific) (representing 60 million effective memberships in the Asia and the Pacific region) which deplored that the Labour Department of Balochistan had cancelled unions not only in the civil service as determined by the High Court but it had crossed the limitation and jurisdiction given by the High Court ruling by cancelling unions of semi-government and non-governmental institutions. The ITUC–Asia Pacific decided to: (i) request all affiliates to send protest letters to the Government of Balochistan in Pakistan; (ii) invoke further the ILO supervisory mechanism against the Government of Pakistan demanding the ban of ILO technical assistance in the province of Balochistan; and (iii) lodge a complaint against the Government of Pakistan before the International Monetary Fund, the World Bank, the Asian Development Bank and the European Union, in relation to the Generalised Scheme of Preferences+ (GSP+) status of Pakistan.
4. 435. The complainant recalls that the Constitution of the Islamic Republic of Pakistan has given the right of freedom of association to its citizens by providing that “every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality” (Article 17) and by prescribing that “for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process” (Article 10-A). The complainant also recalls that the Government has ratified ILO Conventions Nos 87 and 98 on freedom of association and the right to collective bargaining which clearly stipulate that “workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization” and “the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof”. Further, “workers’ and employers’ organizations shall not be liable to be dissolved or suspended by administrative authority.”
5. 436. The complainant further recalls that following the 18th Constitutional Amendment, the four Provinces of Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan have enacted their own Industrial Relations Laws in relation to the formation of unions. The Balochistan Industrial Relations Act (BIRA) determined its application and limitations by providing that it shall apply to all persons employed in any establishment or industry to the extent of Balochistan, but shall not apply to any person employed: (i) in the police or any of the Defense Services of Pakistan or any services or installations exclusively connected with or incidental to the armed forces of Pakistan including an Ordinance Factory maintained by the Federal Government except those run on commercial basis; (ii) in the administration of the State other than those employed as workmen by the railway and Pakistan post; (iii) as a member of the security staff of the Pakistan International Airlines Corporation, or drawing wages in pay group, not lower than group V, in the establishment of that Corporation as the Federal Government may, in the public interest or in the interest of security of the airlines, by notification in the Official Gazette, specify in this behalf; (iv) by the Pakistan Security Printing Corporation or the Security Papers Limited; (v) by an establishment or institution for the treatment or care of sick, infirm, destitute or mentally unfit persons excluding those run on commercial basis; (vi) as a member of the Watch and Ward, Security or Fire Service Staff of an oil refinery, an airport or seaport; and (vii) as a member of the security or fire service staff of an establishment engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas (section 1).
6. 437. In spite of the above clear national and international obligations, the High Court of Balochistan has banned union existence in the civil service of Balochistan (in cases CP No. 669 of 2013 and CP No. 400 of 2015). The Court ruling is based on certain anomalies of the labour laws where civil service and its connected departments have been excluded from the right of unionism and collective bargaining. The complainant deplores that the Labour Department of Balochistan crossed the limitation and jurisdiction given by the High Court decision by cancelling unions (some of them in existence for two to three decades) not only of civil service but also of semi-Government and non-governmental institutions, leaving the trade union movement in Balochistan with organized workers only in mines and in the private industrial sector.
7. 438. The complainant indicates that the trade unions have challenged the decision before the Supreme Court of Pakistan on the grounds that the High Court of Balochistan ignored the legal proposition involved in the case and proceeded to decide the matter without taking cognizance of the law and facts involved. The High Court travelled beyond the scope of pleadings submitted by the parties in dispute which had not taken up the matter of registration of trade unions for an establishment of a public sector department for the determination of its legal permissibility. Furthermore, in the complainant’s view, the employees serving in the public sector organizations are not performing any sovereign functions of the State. They cannot be said to have been employed for the purpose of the administration of the State. The expression “administration of the State” has been defined by the Courts in several pronouncements and should be interpreted in a limited and narrow sense. A quick glance over the list of functions being performed by the public sector organizations would show that none of those functions are carried out by the petitioning unions under the industrial relations law.
8. 439. The complainant maintains that the Supreme Court has held in a ruling (SCMR No. 666 of 1997) that the registration of a trade union cannot be cancelled by the High Court in exercise of its constitutional jurisdiction. This can only be adjudicated upon by the relevant forum provided under the industrial relations law, that is, namely the BIRA, 2010. Section 12 of the BIRA provides a comprehensive procedure for cancellation of a registered trade union if the same is registered in contravention of law. The power to proceed in such case against a particular trade union lies with the Labour Court and the same can only be exercised upon a written complaint of the Registrar of Trade Unions. Consequently, the High Court, by rendering the impugned judgment, would have encroached upon the domain of a statutory forum which act of the High Court is not permissible in view of the law laid down by the Supreme Court.
9. 440. The complainant maintains that the impugned judgment was circulated not only by the Registrar of the High Court but also the Provincial Government of Balochistan among all departments of the Government of Balochistan and immediately after receiving the same, the Directorate-General Labour Welfare Government of Balochistan cancelled the registration of the trade unions, even though not all of them were even party to the proceedings held before the High Court. The Directorate-General Labour Welfare, contravening the spirit of Article 17 of the Constitution of the Islamic Republic of Pakistan, cancelled the registration of trade unions in semi-government departments and autonomous bodies, although there is absolutely no doubt that employees of these semi-government and autonomous bodies have nothing to do with the affairs of administration of the State/Province. It is a matter of record that in all other federating units, the trade unions are functioning in government organizations which are not performing any acts related to the sovereign functions of the State.
10. 441. Furthermore, the complainant maintains that the High Court, not only overlooked the proposition involved in the case but also issued direction to the Government of Balochistan and to all the government departments to cancel the registration of all trade unions working in their respective institutions. The High Court, instead of confining itself to the controversy involved, passed certain suo moto directions (taken without formal prompting from the parties) for which, as per the law settled by the Supreme Court, the High Court had no power at all. The directions were issued against those who were not even party to the proceedings in the instant case. By doing so, the High Court acted in violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan and the principle of audi alteram partem (listening to the other side), making its judgment unsustainable in the eye of the law.
11. 442. The complainant observes that the High Court, while rendering the judgment, also overlooked ILO Conventions ratified by Pakistan. These Conventions impose obligations on the State of Pakistan that it shall endeavour to implement them in letter and spirit in the country. No legislation contrary to those Conventions can be made in the country. Even though the subject of labour has been devolved upon the provinces after the insertion of the 18th constitutional amendment, the fulfilment of obligations contained in international Conventions or treaties is the responsibility of the Federal Government. If there is any ambiguity in a provincial legislation, the responsibility lies on the Federation to intervene. Hence the Government of Balochistan needs to amend its labour laws to bring them in conformity with Conventions Nos 87 and 98. Additionally, the impugned judgment having literally imposed a complete ban on the union activities in the Province of Balochistan needs to be set aside as access to international financial institutions concessional aid is linked with respect to ILO fundamental Conventions.
12. 443. With regard to the responsibilities of the Federal Government and of the Government of Balochistan in the aftermath of the High Court decision, the complainant acknowledges the technical assistance provided by the Office to the Federal Government to organize a tripartite meeting in the capital with the participation of a representation of the Provincial Government, given the seriousness of the matter. The complainant regrets that, during the meeting, the Balochistan Government indicated that the High Court decision would not have any effect as the cancelled unions would be able to register as associations under the Societies Act, 1860.
13. 444. The complainant observes that the only law at the Federal and Provincial levels, since 1926 and after independence in 1947, were the industrial relations laws which governed the formation of unions and collective bargaining. The old Societies Act is a general Act for societies or non-governmental organizations such as employer or other associations such as association of doctors, traders, and so on. The Societies Act does not provide any remedy against dismissal of office bearers or members of associations. The associations so registered cannot undertake any collective bargaining on employment, non-employment, terms of employment and conditions of work. The legal redress of individual grievances and shop steward systems is completely absent from the Societies Act. The right of workers’ participation in management and in joint Management Boards is not available. There is not any legal mechanism for raising industrial disputes, collective bargaining process and legal procedure for rights of strike. There is no mechanism for awards and settlement of disputes in the Societies Act. The redress of grievances is also absent as the labour courts do not have jurisdiction to entertain the complaints under the Societies Act. No Check-off facility for associations registered under the Societies Act has been provided. Therefore, the associations registered under the Societies Act have no ability to undertake collective bargaining and in no manner can be treated as a trade union under Conventions Nos 87 and 98. They could simply work as non-governmental organizations and act as pressure groups.
14. 445. In its latest communication of September 2021, the complainant regrets that, even though the trade unions have contested the decision of the High Court of Balochistan in the Supreme Court of Pakistan on the legal grounds, more than a year had passed without any date of hearing fixed. Therefore, the Federal Government and the Government of Balochistan should be urged to amend the following definitions in their respective labour laws so that the anomalies, defects, and deficiencies identified in the decision of the Balochistan High Court are removed and the 62 unions are accordingly restored: (i) at the Federal level, section 1(3) of the Federal Industrial Relations Act should be amended as such: “It applies to all persons who are employers of and all persons who are employed or engaged in rendering services of any nature for remuneration in any form and on any basis in all occupations, remuneration in any form and on any basis in all occupations, professions and industry, at all places of work established towards any private or public purpose with the sole exception of persons employed in the police and armed forces of Islamic Republic of Pakistan”; (ii) accordingly, section 1(4) of the Balochistan Industrial Relations Act should be amended as such: “It applies to all persons who are employers of and all persons who are employed or engaged in rendering services of any nature for remuneration in any form and on any basis in all occupations, remuneration in any form and on any basis in all occupations, professions and industry, at all places of work established towards any private or public purpose with the sole exception of persons employed in the police and armed forces of the Islamic Republic of Pakistan”; (iii) section 2(b)(iii) of the Balochistan Civil Servants Act should be amended as such: (civil servant means […]) “a person who is worker or workmen as defined in the Baluchistan Industrial Relations Act (BIRA)”; (iv) section 2(i) of the Balochistan Factories Act should be amended as such: “Worker means a person who has been defined as worker in Baluchistan Industrial Relation Act”; and (v) section 30(b) of the Balochistan Government Servants (Conduct) Rules should be amended as such: (No Government servant shall be a member, representative or officer of any association […] unless such association satisfied the following conditions:) “Provided the workers/workman defined in the BIRA shall be exempted from the above restriction”.

B. The Government’s reply

1. 446. The Government provided regular updates on the steps taken to address the matters raised in the complaint in its communications dated 11 and 18 October 2021, 17 May 2022 and 12 September 2023.
2. 447. The Government recalls that the High Court of Balochistan in various cases (CP No. 669/2013 and CP No. 400/2015) ruled that employees working in governments, semi-governments and autonomous bodies are governed by the Balochistan Civil Servant (Conduct) Rules, 1979, and are persons employed in the administration of the State. The BIRA, 2010, as provided in its section 1(4), is thus not applicable to any such person employed in the administration of the State. Foregoing in view, the High Court of Balochistan declared that such persons who are governed by Balochistan Civil Servant Conduct Rules cannot form trade unions. Accordingly, all trade unions formed by such persons in the administration of the State were declared as illegal and directed for cancellation of their registration except unions formed by the workmen who are governed under the BIRA.
3. 448. The Government asserts that the cancellation of the 62 unions was neither a targeted administrative action of the Government of Balochistan nor a suo moto action from the judiciary. It resulted from a dispute from within union leaders who themselves approached the High Court. During proceedings it occurred that the parties were government employers/employees in the administration of the State, whose appointment in the Government and terms and conditions of their service is governed purely by the Balochistan Civil Servants Act, 1974, and are excluded from the ambit of the BIRA vide its section 1(4). Therefore, the decision of the High Court was not meant to violate the right to freedom of association of these government employees/persons in administration of the State, but rather to point out that the unions were wrongfully registered with the Registrar of Trade Unions under the BIRA instead of their own respective Rules under the Balochistan Government Servants (Conduct) Rules, 1979. According to the Government, the civil servants whose unions were cancelled have all the rights intact to form their Service Associations under Rule 30 of the Balochistan Government Servants (Conduct) Rules, 1979, wherein certain conditionalities are attached for making associations by employees of the public sector.
4. 449. While informing that the aggrieved parties whose unions were cancelled, challenged the said judgment of the High Court of Balochistan at the next judicial forum, namely the Supreme Court of Pakistan, the Government also indicates that the Ministry of Overseas Pakistani and Human Resource Development (MOPHRD) attached high priority to the subject case and conducted thorough tripartite deliberations with all stakeholders, including the representatives of workers’ organizations which were affected by the High Court decision and the employers’ organizations. The Government informs that, subsequently, it was deduced that the resolution of the matter and future modus operandi would depend on the verdict of the Supreme Court of Pakistan.
5. 450. Accordingly, the MOPHRD, vide letter dated 29 September 2021, requested the Law and Justice Division that the Office of the Registrar Supreme Court may be requested for early hearing of the said civil petitions. Further, the Secretary of MOPHRD visited the Province of Balochistan in September 2021 and conducted important high-level meetings in Quetta with the Chief Secretary and the Secretary of the Labour and Manpower Department (LMD) Balochistan on the subject matter, along with all other stakeholders.
6. 451. The Government indicates that the right of association of persons employed in the administration of State, whose unions have been cancelled, is not infringed in any form, neither are they deprived of grievance redressal mechanism. A parallel rather stronger system is already available to address the grievances of persons in the administration of State in the form of Balochistan Service Tribunal under the Balochistan Service Tribunals Act, 1974. Being aggrieved by the Service Tribunal, they can approach the High Court and further the Supreme Court of Pakistan. Moreover, there are variety of laws and rules like the Appeal Rules, Leave Rules, Appointment Rules and so on, which provide sufficient space to the government servants to protect their rights as per the following details.
7. 452. The Government declares itself fully committed to abide by the principles and provisions of Conventions Nos 87 and 98 ratified by the country. Once the case is decided by the Supreme Court of Pakistan, the Federal Government, in collaboration with the Government of Balochistan, will take appropriate actions in consonance with ILO Conventions. In the meantime, the Government informs that the MOPHRD has become a party in the ongoing court cases between two unions at the Supreme Court of Pakistan to present the perspective in terms of international obligations.
8. 453. In its latest communication dated 12 September 2023, the Government provides the following update in connection with the Supreme Court of Pakistan’s potential ruling on the case against the High Court of Balochistan decision dated 24 June 2019, concerning civil servants’ rights to form trade unions (CP No. 3230/2019): the case has been scheduled for hearings on three distinct dates (11 January 2023, 1 March 2023 and 7 April 2023). However, the Court adjourned the case on all three occasions. During the latest hearing held on 7 April 2023, the Supreme Court recognized the significance of the matter pertaining to the rights of civil servants to form trade unions. Consequently, the Court directed the Attorney-General for Pakistan, as well as the Advocate-Generals of Punjab, Sindh, Islamabad Capital Territory, and Khyber Pakhtunkhwa, to submit their respective concise statements within four weeks. As of now, the Supreme Court has not set a new date for the next hearing.
9. 454. Regarding the Federal and Provincial Governments’ efforts to align their laws with relevant ILO Conventions, the Government draws attention to the BIRA of 2022 which has been revised and put into effect as a significant step in this direction. The amendments removed exceptions for the categories covered under the Act, aligning it more closely with the relevant ILO Conventions. In particular, the Government highlights that section 4 of the BIRA now states that it applies to all workers and employers at all workplaces operating or conducting business within Balochistan. This action demonstrates an effort to bring the law in line with international labour standards, as recommended by the ILO.
10. 455. As a future course of action, the Government is exploring the possibility of benefiting from the technical advice of an ILO legal specialist as amicus curiae (permitted to assist by offering expertise) to the Court in the current matter. This assistance aims to provide the Court with a clearer understanding of the international obligations stemming from Pakistan’s ratifications of Conventions Nos 87 and 98.

C. The Committee’s conclusions

1. 456. The Committee notes that in this case the complainant, the PWF, denounces the cancellation of trade unions in civil service, semi-government and non-governmental institutions, in the Province of Balochistan in pursuance of a decision of the Provincial High Court in 2019.
2. 457. The Committee notes that PWF expresses its deep concern about the cancellation of 62 trade unions in the Province of Balochistan of Pakistan in pursuance of a decision dated 24 June 2019 of the Provincial High Court whereby direction has been issued to the Chief Secretary as well as secretaries of all government departments to move towards the cancellation of trade unions and their registration in all Public Departments. The Committee observes that, following the High Court ruling, the Directorate-General of Workers’ Welfare of Balochistan issued Order No. 45/R&R/DGL W/QTA/1385-1433 dated 12 July 2019 whereby registration of “all the trade unions formed by the employees of government departments, semi-government departments and autonomous bodies” was cancelled. According to the PWF, by holding that the employees of public sector organizations can form associations under the Societies Act, 1860, the Balochistan High Court took away public sector unions’ genuine freedom of association and collective bargaining rights and pushed them to work as non-governmental organizations.
3. 458. The complainant asserts that the ruling from the High Court has met with strong resistance from the labour force and disrupted social peace in the country. Similarly, the cancellation had been greatly felt by the global labour movement. The complainant refers in particular to a resolution passed by the ITUC–Asia Pacific in August 2019 requesting all affiliates to protest to the Government of Balochistan, demanding the ban of ILO technical assistance in the Province of Balochistan, and calling for complaints against the Government of Pakistan before the International Monetary Fund, the World Bank, the Asian Development Bank and the European Union, in relation to the Generalised Scheme of Preferences+ (GSP+) status of Pakistan.
4. 459. The Committee notes the Government’s assertion that the cancellation of the 62 unions was not targeted administrative action of the Government of Balochistan. It resulted from a dispute from within union leaders who brought their case to the High Court. During proceedings it occurred to the Court that the parties were government employers/employees in the administration of the State, whose appointment in the Government and terms and conditions of their service is governed purely by the Balochistan Civil Servants Act, 1974, and are excluded from the ambit of the BIRA vide its section 1(4). Therefore, the decision of the High Court was not meant to violate the right to freedom of association of these government employees/persons in administration of the State, but rather to point out that the unions were wrongfully registered with the Registrar of Trade Unions under the BIRA instead of their own respective Rules under the Balochistan Government Servants (Conduct) Rules, 1979.
5. 460. The Committee notes the Government’s indication that the High Court of Balochistan in various cases (CP No. 669/2013 and CP No. 400/2015) had ruled that employees working in governments, semi governments and autonomous bodies are governed by the Balochistan Civil Servant (Conduct) Rules, 1979, and are persons employed in the administration of the State. Therefore, the BIRA, 2010, as provided in its section 1(4), is not applicable to any such person employed in the administration of the State. Foregoing in view, the High Court of Balochistan declared that such persons who are governed by the Balochistan Government Servants (Conduct) Rules, 1979, cannot form trade unions. The Government adds that the civil servants whose unions were cancelled by order of the Directorate-General of Workers’ Welfare of Balochistan have all the rights intact to form their Service Associations under Rule 30 of the Balochistan Government Servants (Conduct) Rules, 1979, wherein certain conditionalities are attached for making associations by employees of the public sector.
6. 461. According to the Government, the right of association of persons employed in the administration of the State, whose unions have been cancelled, is not infringed in any form, neither are they deprived of grievance redressal mechanism. A parallel rather stronger system is already available to address the grievances of persons in the administration of the State in the form of the Balochistan Service Tribunal under the Balochistan Service Tribunals Act, 1974. Being aggrieved by the Service Tribunal, they can approach the High Court and further the Supreme Court of Pakistan. Moreover, there are variety of laws and rules like the Appeal Rules, Leave Rules, Appointment Rules and so on, which provide sufficient space to the government servants to protect their rights.
7. 462. The Committee notes that PWF denounces the fact that the High Court of Balochistan has banned union existence in the civil service in the Province. The Court ruling is said to be based on certain anomalies of the labour laws where civil service and its connected departments have been excluded from the right of unionism and collective bargaining. The complainant deplores that the Labour Department of Balochistan crossed the limitation and jurisdiction given by the High Court decision by cancelling unions (some of them in existence for two to three decades) not only of civil service but also of semi-government and non-governmental institutions, leaving the trade union movement in Balochistan with organized workers only in mines and in the private industrial sector. The Committee further notes the complainant’s referral to the Constitution of the Islamic Republic of Pakistan which has given the right of freedom of association to its citizens by providing that “every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality” (Article 17) and by prescribing that “for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process” (Article 10-A). The Committee also notes that, according to the complainant, the High Court, while rendering the judgment, overlooked Conventions Nos 87 and 98 on freedom of association and the right to collective bargaining which clearly stipulate that “workers and employers without distinction whatsoever shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization and the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. Further, workers’ and employers’ organizations shall not be liable to be dissolved or suspended by administrative authority”.
8. 463. The Committee notes the complainant’s view that the only law at Federal and Provincial levels governing the formation of unions and collective bargaining, since 1926 and after independence in 1947, were the industrial relations laws. In comparison, the old Societies Act is a general Act for societies or non-governmental organizations such as employer or other associations such as association of doctors, traders, and so on. The Societies Act does not provide any remedy against dismissal of office bearers or members of associations. The associations so registered cannot undertake any collective bargaining on employment, non-employment, terms of employment and conditions of work. The legal redress of individual grievances and shop steward system is completely absent from the Societies Act. The right of workers participation in management and in joint Management Boards is not available. There is not any legal mechanism for raising industrial disputes, collective bargaining process and legal procedure for rights of strike. There is no mechanism for awards and settlement of disputes in the Societies Act. The redress of grievances is also absent as the labour courts do not have jurisdiction to entertain the complaints under the Societies Act. No Check-off facility for associations registered under the Societies Act has been provided. Therefore, in the view of the PWF, the associations registered under the Societies Act have no ability to undertake collective bargaining and in no manner can be treated as a trade union under Conventions Nos 87 and 98. They could simply work as non-governmental organizations and act as pressure groups.
9. 464. The Committee recalls that public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 336]. The denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their associations do not enjoy the same advantages and privileges as trade unions, involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with Article 2 of Convention No. 87, according to which workers without distinction whatsoever shall have the right to establish and join organizations of their own choosing without previous authorization, as well as with Articles 3 and 8, paragraph 2, of the Convention [see Compilation, para. 339]. The existence of a dispute settlement mechanism cannot justify the denial to government employees of the right to organize[see Compilation, para. 341]. In view of the elements of the case acknowledged by both the complainant and the Government, the Committee observes that the impossibility under the applicable law for civil servants in the Province of Balochistan to form or join an organization within the meaning of Article 2 of Convention No. 87 is incompatible with the principle of freedom of association. In this regard, the Committee aligns itself to the comments made for many years by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) urging the Government to ensure that the federal and provincial governments take the necessary measures to revise their respective laws 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. The Committee therefore urges the Government to ensure that the Government of Balochistan takes all the necessary measures to guarantee that civil servants are able to form and join organizations of their own choosing freely and to engage in activities for the defence of their members’ interest. Additionally, the Committee urges the Government to ensure without delay that the associations of currently excluded civil servants can represent the interests of their members in relation to the employer and the authorities. The Committee requests the Government to keep it informed of the measures taken in this regard.
10. 465. The Committee notes that the complainant urges the Federal Government and the Government of Balochistan to amend a number of definitions in their respective labour laws so that the anomalies, defects, and deficiencies identified in the decision of the Balochistan High Court are removed and the 62 unions are accordingly restored. The Committee notes the information provided by the Government, in relation to the Federal and Provincial Governments’ efforts to align their laws with relevant ILO Conventions, that the BIRA, revised in 2022, is a significant step in this direction by removing exceptions for the categories covered under the Act, aligning it more closely with the relevant ILO Conventions. The Government highlights that section 4 of the BIRA now states that it applies to all workers and employers at all workplaces operating or conducting business within Balochistan.
11. 466. While acknowledging the efforts made to bring previously excluded categories of workers within the scope of the industrial relations legislation in Balochistan, the Committee draws the Government’s attention to the observations of the CEACR in 2022 that the exceptions retained in the new law are still larger than the permissible exclusions set out in the Convention. The Committee recalls that the standards contained in Convention No. 87 apply to all workers without distinction whatsoever, and are therefore applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests [see Compilation, para. 334] and encourages the Government to take all necessary measures to bring the BIRA and relevant legislations in Balochistan in line with the principle of freedom of association in this regard. The Committee draws the attention of the CEACR to this legislative aspect of the case.
12. 467. The Committee notes the indication from the PWF that trade unions have challenged the decision before the Supreme Court of Pakistan (Civil Petitions Nos 3230/2019 and 3221/2019) on the grounds that: (i) the High Court of Balochistan ignored the legal proposition involved in the case and proceeded to decide the matter without taking cognizance of the law and facts involved. The High Court travelled beyond the scope of pleadings submitted by the parties in dispute which had not taken up the matter of registration of trade unions for an establishment of a public sector department for the determination of its legal permissibility; (ii) the High Court, instead of confining itself to the controversy involved, passed certain suo moto directions (taken without formal prompting from the parties) to the Provincial Government for which, as per the case law settled by the Supreme Court, the High Court had no power at all; (iii) the directions were issued against those who were not even party to the proceedings in the instant case. By doing so, the High Court acted in violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan and the principle of audi alteram partem (listening to the other side), making its judgement unsustainable in the eye of the law; (iv) the employees serving in the public sector organizations in semi-government departments and autonomous bodies that were cancelled are not performing any sovereign functions of the State. Therefore, they cannot be said to have been employed for the purpose of the administration of the State which expression has been defined by the Courts in several pronouncements and should be interpreted in a limited and narrow sense. In particular, according to the Supreme Court, public sector organizations do not fall in the ambit of administration of the State and are performing non-regal functions; and (v) the Supreme Court has held in a case (SCMR No. 666 of 1997) that the registration of a trade union cannot be cancelled by the High Court in exercise of its constitutional jurisdiction but only be adjudicated upon by the relevant forum provided under the Industrial Relations Law, that is, namely the BIRA, 2010. In the instant case before the High Court, section 12 of the BIRA provides a comprehensive procedure for cancellation of a registered trade union if the same is registered in contravention of law. The power to proceed in such case against a particular trade union lies with the Labour Court and the same can only be exercised upon a written complaint of the Registrar of Trade Unions.
13. 468. The Committee observes that in its latest communication of September 2021, the complainant regretted that more than a year had passed without any date of hearing fixed.
14. 469. The Committee notes the Government’s statement that once the case is decided by the Supreme Court of Pakistan, the Federal Government, in collaboration with the Government of Balochistan, will take appropriate actions in consonance with ILO Conventions. The Committee however notes with concern that Case No. 3220/2019 has been scheduled for hearings on three distinct dates (11 January 2023, 1 March 2023 and 7 April 2023). However, the Court adjourned the case on all three occasions. It notes that during the latest hearing held on 7 April 2023, the Supreme Court, recognizing the significance of the matter pertaining to the rights of civil servants to form trade unions, directed the Attorney-General for Pakistan, as well as the Advocate-Generals of Punjab, Sindh, Islamabad Capital Territory, and Khyber Pakhtunkhwa, to submit their respective concise statements within four weeks. The Committee also notes with concern that it has not received any information as to a new date for the next hearing.
15. 470. As concerns allegations that legal proceedings are overly lengthy, the Committee has recalled the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied [see Compilation, para. 169]. The Committee wishes to express its deep concern about the length of time that has passed without the Supreme Court being able to examine the appeals against the High Court of Balochistan’s decision. This delay has impeded the conduct of trade union activities in the public sector and hindered the free exercise of freedom of association in the Province. Therefore, the Committee expects that the Supreme Court will examine Cases Nos 3220/2019 and 3221/2019 brought before it without further delay and that the Government will keep it informed of the outcomes and of any follow-up measures taken both at Federal and Provincial levels.
16. 471. The Committee acknowledges the efforts from the part of the Government, in the aftermath of the High Court decision, to seek the technical assistance of the Office given the seriousness of the matter. The Committee also notes the indication that: (i) the MOPHRD conducted thorough tripartite deliberations with all stakeholders, including the representatives of workers’ organizations which were affected by the High Court decision and the employers’ organizations; (ii) the MOPHRD, vide letter dated 29 September 2021, requested the Law and Justice Division that the Office of the Registrar Supreme Court may be requested for early hearing of the said civil petitions; (iii) the Secretary of MOPHRD visited the Province of Balochistan in September 2021 and conducted important high-level meetings in Quetta with the Chief Secretary and the Secretary Labour and Manpower Department (LMD) Balochistan on the subject matter, along with all other stakeholders; (iv) the Government also informs that the MOPHRD has become a party in the ongoing court cases between two unions at the Supreme Court of Pakistan to present the perspective in terms of international obligations; and (v) the Government is exploring the possibility of benefiting from the technical advice of the ILO to provide the Supreme Court with a clearer understanding of the international obligations stemming from Pakistan’s ratifications of Conventions Nos 87 and 98.
17. 472. The Committee encourages the Government to pursue its effort to find solutions to the pending matters. In view of the time that has elapsed since the lodging of the complaint in 2019, the Committee trusts that the Government will receive the technical assistance of the Office necessary to take swift action on the outstanding matters in this case.