Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Pakistan (Ratification: 1951)

The Committee notes the Government’s report. It regrets that no information was provided by the Government in respect of the following matters previously raised by the Committee.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee once again asks the Government to:

-  specify whether the persons who have been convicted for embezzlement or misappropriation of funds or of a criminal offence of heinous nature within the meaning of the Pakistan Penal Code, such as theft, physical assault, murder, attempt to murder, etc. (section 7 of the IRO of 2002), were indeed prohibited from becoming trade union members or whether this section was limited to prohibiting their membership on trade union executive boards;

-  indicate whether occupational or professional trade unions could be established (it appears from section 6(2)(a) of the IRO that only trade unions of workers engaged or employed in the same establishment or industry may be registered);

-  lower the requirement of the minimum trade union membership set at 25 per cent of workers employed at the respective establishment or industry (section 6(2));

-  extend the right to the check-off facilities and the right to call a strike to all trade unions (under sections 20(13)(b) and (c), 21, 43(1) and 56(1), these rights are granted only to the collective bargaining agent, i.e. the most representative trade union) and to indicate whether minority unions may represent their members in respect of individual grievances; and

-  repeal section 12(3)(ii), (iii) and (iv) of the IRO, which allow dissolution of the trade union by the Registrar.

The Committee requests that the Government keep it informed of the measures taken or envisaged to bring its legislation into conformity with the Convention in respect of the abovementioned points.

Article 3. (a) Right to elect representatives freely. The Committee had previously noted that under section 39(7) of the IRO, the labour court had the power to disqualify a trade union office bearer from holding any trade union office for the unexpired term of his or her office and for the term immediately following, for violation of its order to stop a strike. Considering that such a sanction should only be possible where the strike prohibition in question is in conformity with the principle of freedom of association and should not be imposed if the action in question is peaceful, the Committee asks the Government to take the necessary measures to amend section 39(7) so as to bring it into conformity with the Convention and to keep it informed in this respect.

The Committee had further noted that the same sanction was also provided for in section 65(5) for committing an unfair labour practice broadly defined under section 64(1)(d) as an act of compelling or attempting to compel the employer to accept any demands by using, among others means, intimidation, coercion, pressure, threat, confinement or ouster from a place, dispossession, disconnection of telephone, water or power facilities. The Committee once again recalls in this respect that conviction for an act, the nature of which is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. Thus, legislation, which establishes excessively broad ineligibility criteria 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 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). As the penalty provided under section 65(5) of the IRO could potentially run counter to the right of workers to elect their representatives freely, since this section seems to cover a wide range of conduct - some of which is of a criminal nature, while other acts might not necessarily render the persons found guilty inappropriate for holding trade union office - the Committee requests the Government to indicate the manner in which section 64(1)(d) is to be interpreted and, more particularly, the wording "an act of compelling or attempting to compel the employer to accept any demands by using pressure and other such means". It further requests that the Government keep it informed of any practical application of this provision.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee had previously noted section 19(1) of the IRO, which provided that accounts maintained by the collective bargaining agent with a membership of 5,000 or more were subject to an external audit by a firm of accountants appointed by the Registrar. In cases when the collective bargaining agent had a membership of less than 5,000, the accounts were subject to audit in the manner "as may be prescribed". In this respect, the Committee notes the information provided by Government to the Committee on Freedom of Association according to which, the Government had proposed to amend the law so as to give the right of choice of an auditor to trade unions. The Government indicated that only the accounts of collective bargaining agents having a membership of 10,000 or more would be subject to an external audit (see Case No. 2229, 338th Report, November 2005). In its previous direct request, the Committee had also noted that section 58(d) conferred to the Registrar a power to inspect the accounts and records of the registered trade unions, investigate or hold such inquiry as he or she deemed fit. The Committee considers that problems of compatibility with the Convention arise when the administrative authority has the power to audit the trade union’s accounts, to inspect their accounts and records and demand information at any time (see General Survey, op. cit., paragraph 125). The Committee hopes that sections 19(1) and 58(d) of the IRO will be amended in the near future so as to bring them into conformity with the Convention and requests that the Government keep it informed of the progress made in this respect.

The Committee had also noted section 20(14) of the IRO, concerning collective bargaining agents, which provided that "the registrar may authorize in writing an office bearer to perform all or any of his functions under the Ordinance and the rules made thereafter". Recalling that the authorities should exercise great restraint in relation to the intervention in the internal affairs of trade unions, the Committee requests the Government to clarify the meaning of this section and, in particular, whether it means that union officers may be restricted in their functions by the Registrar.

Furthermore, the Committee had noted that, according to section 43(2) and (3) of the IRO, "no party to an industrial dispute should be entitled to be represented by a legal practitioner in any conciliation proceedings" and representation was possible in the proceedings before the labour court, or arbitrator, only with the permission of the court or the arbitrator, as the case may be. Considering that legislation which prevents workers’ and/or employers’ organizations from using the services of experts such as lawyers and agents to represent them in administrative or judicial proceedings is not in conformity with Article 3 of the Convention, the Committee once again requests the Government to amend section 43 so as to allow these organizations to be represented by lawyers in administrative or judicial proceeding should they so desire and keep it informed of the measures taken or envisaged in this respect.

(c) Right to strike. The Committee had previously noted that go-slow measures were forbidden under section 64(1)(f) and in the definition of "strike" provided for in section 2(xxviii). Go-slow was punishable by a fine which may extend up to 30,000 rupees and, in case of an office bearer, by disqualifying him or her from holding any office in any trade union during the term immediately following his or her term, in addition to any other punishment which the Court might award (section 65(4) and (5)). The Committee once again recalls that any work stoppage, however brief and limited, may generally be considered as a strike. It is of the opinion that restrictions as to the forms of strike action can only be justified if the action ceases to be peaceful and that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey, op. cit., paragraphs 173 and 177). The Committee requests the Government to amend its legislation so as to ensure that a peaceful go-slow action is not considered to be a prohibited unfair labour practice and that no sanction may be imposed for a participating in such action.

The Committee further requests that the Government indicate whether workers’ organizations may exercise strike action in search of solutions to problems posed by major social and economic policy trends and whether workers may have recourse to sympathy strikes without penalty.

Furthermore, the Committee once again asks the Government to indicate whether Presidential Ordinance No. IV of 1999, which amends the Anti-Terrorism Act by penalizing the creation of civil commotion, including illegal strikes or go-slows, with up to seven years’ imprisonment, is still in force.

Articles 2 and 4. The Committee had previously noted that under section 12(2), contravention of section 7, which prohibited a person who has been convicted for embezzlement or misappropriation of funds or of a criminal offence of heinous nature within the meaning of the Pakistan Penal Code, such as theft, physical assault, murder, attempt to murder, etc., from becoming a trade union office bearer, was a ground for cancellation of trade union registration by the labour court. The Committee considers that, although the conviction for an act, the nature of which calls into question the integrity of the person concerned may represent grounds for disqualification for trade union office, that should not constitute a reason for cancellation of trade union registration, which is tantamount to dissolution of the union. To deprive workers of their trade union organization because of illegal activities previously carried out by one of its leaders is, in the Committee’s opinion, a disproportionate sanction which violates the rights of workers to organize under Article 2 of the Convention. The Committee therefore once again asks the Government to amend this provision so as to enable the union members to rectify the situation by electing a new trade union officer.

Articles 2 and 5. Right of organization to establish federations and confederations and to affiliate with international organizations. The Committee had previously raised concerned over the following sections of the IRO of 2002:

-  section 3(1)(d), according to which, every collective bargaining agent was required to affiliate with a federation at the national level registered with the National Industrial Relations Commission within two months after it was certified as collective bargaining agent or after the promulgation of the IRO; and

-  section 18(1), according to which, any ten or more trade unions, with at least one from each province, might constitute a federation or confederation at the national level.

The Committee notes in this respect the information submitted by the Government to the Committee on Freedom of Association (see Case No. 2229, op. cit.). According to the Government, it was in the process of amending its legislation. As concerns section 18(1), the Government indicated that the number requirement was four, one from each province. The Committee requests that the Government keep it informed of the progress made in amending the abovementioned sections.