Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Pakistan (Ratification: 1952)

In its previous comment, the Committee requested the Government to provide its reply to the 2020 observations of the International Transport Workers’ Federation (ITF), denouncing serious allegations of anti-union discrimination by the national airline company, including the unilateral de-recognition of the Pakistan Airline Pilots’ Association (PALPA) and other employees’ associations in the company, as well as the termination of all working agreements with immediate effect. The Committee notes the Government’s comments that: (i) the PALPA is neither a registered trade union nor a recognized collective bargaining agent under the Industrial Relations Act, 2012 (IRA) but an association of persons registered under the Societies Registration Act, 1860 and even this status is jeopardized in a lawsuit before the Sind High Court; (ii) only the IRA and its provincial variants recognize the forum of collective bargaining agent, which can engage in collective bargaining and, under the IRA, only an agreement with the collective bargaining agent is binding on workers and employers; (iii) any agreement that the PALPA had reached was therefore a civil contract which could be terminated by any party with notice to the other party and not a settlement with legal force under the IRA; and (iv) the airline company does not intend to stop trade union and collective bargaining activities in the establishment, which continue to take place, and it recognizes all its duly registered trade unions and collective bargaining agents. While taking due note of the above, the Committee observes that, according to the ITF observations: (i) the PALPA would be the sole representative organization for pilots in the country; (ii) its de-recognition would therefore deprive this category of workers of effective means of negotiating the terms and conditions of employment and defending their interests; and (iii) the annulment of all concluded working agreements would have a serious impact on the working conditions of the pilots of the referred airline. The Committee further observes that the restriction of the PALPA’s bargaining rights would appear to be linked to the fact that the workers concerned are organized through an association of persons and not a trade union under the IRA, a matter which was already raised under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee also observes in this regard that the Committee on Freedom of Association previously noted that trade union rights had been restored to workers at the company (see 353rd Report, March 2009, Case No. 2242, paragraph 177) and while recalling that, since then, a new IRA was adopted in 2012, it notes with regret that, according to the information provided, there appears to be a step backwards in terms of trade union rights and the right to collective bargaining at the company. The Committee recalls in this respect that the Convention guarantees collective bargaining rights to all workers except the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6). In view of the above and given the serious nature of the allegations made, the Committee requests the Government to take all necessary measures to ensure that pilots from both private and public companies can, in law and in practice, negotiate the terms and conditions of their employment through organizations that genuinely represent their interests and to ensure the principle that freely concluded collective agreements should be binding on the parties. Further emphasizing the importance of social dialogue in crisis situations, including during the COVID-19 pandemic, the Committee trusts that the Government will take all necessary measures to promote co-operation and dialogue among all the social partners in the aviation industry, as an effective means to resolving any outstanding issues and maintaining harmonious labour relations in the sector. The Committee requests the Government to provide information on the steps taken in this respect.

The Committee had also previously requested the Government to provide its comments on the 2012 and 2015 observations of the International Trade Union Confederation (ITUC), alleging anti-union dismissals and acts of interference in trade union internal affairs by employers. The Committee notes the Government’s indication that the Ministry of Overseas Pakistani and Human Resource Development (OPHRD) is in close contact with the respective provincial departments and that a detailed response will be provided in its next regular report. Regretting the delay in the Government’s response to allegations that date back to 2012 and 2015, the Committee expects the Government to provide its comments in this regard without further delay.

Scope of application of the Convention. In its previous comments, the Committee noted that the IRA, the Balochistan IRA (BIRA), the Khyber Pakhtunkhwa IRA (KPIRA), the Punjab IRA (PIRA) and the Sindh IRA (SIRA) excluded numerous categories of workers (enumerated by the Committee in its 2018 comments on the application of Convention No. 87) from their scopes of application. It therefore urged the Government to ensure that the federal, as well as provincial governments, take the necessary measures in order to amend the legislation so as to ensure that all workers, with the only possible exception of the armed forces, the police and public servants engaged in the administration of the State, fully enjoy the rights enshrined in the Convention. The Committee regrets that the Government does not provide any details as to the measures taken or envisaged in this respect and that its response is limited to reiterating the general protection provided to workers by the federal and regional legislative and institutional frameworks. Regretting the lack of any tangible progress in this regard and emphasizing that the only categories of workers which can be excluded from the application of the Convention are the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6 of the Convention), the Committee urges the Government once again to ensure that the federal, as well as provincial governments, take the necessary measures, in consultation with the social partners, to amend the legislation to this effect. The Committee requests the Government to provide detailed information on any legislative measures taken or envisaged to bring the legislation into full conformity with the Convention.

Export processing zones (EPZs). In its previous comment, the Committee noted with deep regret the lack of progress in the drawing up of rules that would grant the right to organize to EPZ workers and urged the Government to take the necessary steps to ensure that the new Export Processing Zones (Employment and Service Conditions) Rules, 2009 would guarantee the right to organize to EPZ workers and to accelerate the process of their drafting and approval. The Committee notes that the Government does not provide any information about the status of the EPZ Rules, 2009 but informs that the application of labour laws was extended to EPZs and that the provision on the prohibition of strike was deleted from the EPZ Rules, 1982, allowing workers to invoke the right to strike in relation to their demands concerning employment issues. While welcoming this information, the Committee notes that the Government does not provide further details as to the overall impact of these changes on freedom of association of EPZ workers and observes from the text of the Ministerial notification (No. 7(11)/2008-FAC from 5 August 2021) that the EPZs remain exempted from the application of the IRA, which regulates the formation of trade unions, the determination of collective bargaining agents and the relations between workers and employers. In these circumstances, the Committee requests the Government to clarify the extent to which the rights provided by the Convention are guaranteed to workers in EPZs following the mentioned legislative changes. The Committee also requests the Government to consider extending the application of the industrial relations laws, as amended in line with the Committee’s comments, to EPZs, or to take any other necessary measures to ensure that EPZ workers can fully benefit from all the rights provided by the Convention.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Banking sector. The Committee had previously requested the Government to repeal the penal sanctions for the exercise of trade union activities during office hours (imprisonment and/or fines) provided under section 27-B of the Banking Companies Ordinance, 1962. In its previous comment, the Committee noted the Government’s indication that it was agreed in a tripartite meeting to permit only those union activities during office hours that relate to redress of grievances and it therefore reiterated its request. The Committee notes the Government’s statement that: (i) the Ministry of OPHRD makes persistent efforts to amend section 27-B and is engaged with other ministries and relevant stakeholders, including social partners, to reach consensus on the subject; and (ii) to accelerate these efforts, a meeting of the concerned stakeholders was organized by the Ministry of Finance and the dialogue on the subject continues. Recalling that for the past 19 years it has been requesting the Government to repeal the penal sanctions provided for in section 27-B, the Committee notes with deep concern the lack of any substantial progress in this regard. The Committee therefore urges the Government once again to take all the necessary measures to repeal section 27-B so as to enable workers in the banking sector to exercise trade union activities, with the consent of the employer, within working hours.

Article 4. Collective bargaining. The Committee previously noted that, according to section 19(1) of the IRA and section 24(1) of the BIRA, KPIRA, PIRA and SIRA, if a trade union is the only one in the establishment or group of establishments (or industry in the BIRA, KPIRA, PIRA and SIRA) but it does not have at least one third of the employees as its members, no collective bargaining is possible at the given establishment or industry. The Committee recalled that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Committee therefore urged the Government to take the necessary measures to ensure that if there is no union representing the required percentage to be designated as the collective bargaining agent, collective bargaining rights are granted to the existing unions, jointly or separately, at least on behalf of their own members.

The Committee also noted that the provisions on the determination of collective bargaining units gave competence in this regard to the National and Provincial Industrial Relations Commission (sections 62 of the IRA and 30 of the BIRA), the Labour Appellate Tribunal (section 25 of the KPIRA and PIRA) or the Registrar (section 25 of the SIRA) and that previously certified unions could lose the status of collective bargaining agents as a result of a decision in which the parties played no role. The Committee requested the Government to ensure that the necessary measures are taken by the federal and provincial governments to amend the legislation, so that the determination or modification of the collective bargaining unit is made by the social partners, since they are in the best position to decide the most appropriate bargaining level.

The Committee further noted with interest that, in the absence of a collective bargaining agent, worker members of work councils were chosen through an election but considered that even if a union could persuade workers to vote for its members to be represented in several entities (shop stewards, work councils and joint management boards), there was a risk of the union being undermined by workers’ representatives. Having noted that a reform of the Provincial Tripartite Consultation Committees was being considered, the Committee requested the Government to ensure that both the federal and provincial governments guarantee that the existence of elected workers’ representatives is not used to undermine the position of the trade unions concerned or their representatives and to submit a copy of the Rules providing the notice and procedure for the election of workers’ representatives to work councils.

Regretting that the Government does not provide any updated information in relation to the above matters concerning collective bargaining, the Committee reiterates its requests in this regard and expects the Government to make every effort to advance on the outstanding issues, both by the federal and the provincial governments, so as to achieve compliance with the Convention, and to provide detailed information on the progress made.

Collective bargaining in practice. In its previous comment, the Committee requested the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention. The Committee notes that the Government simply states that the Ministry of OPHRD is in close contact with the respective provincial departments authorized to collect and compile the required information about collective bargaining under their jurisdiction, which will be provided in its next regular report. The Committee trusts that the Government will be in a position to provide detailed information in this respect in its next report.

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