2008 Annual Survey of violations of trade union rights - Pakistan
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Pakistan, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca7732.html [accessed 30 April 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 182
Pakistan's highly restrictive labour laws, combined with a near total lack of law enforcement bodies, permitted unmitigated attacks by employers and state enterprises managers against trade union rights. Despite longstanding promises to the ILO, the government made no progress in amending its laws to bring them into compliance with international standards and continued to exclude workers in many economic sectors from exercising their rights. The Sindh provincial government outlawed the teachers' unions, and several state enterprises and military-controlled companies continued to bar unions.
Trade union rights in law
Restrictions on freedom of association: Article 17 of the Constitution of Pakistan states: "Every citizen shall have the right to form associations or unions, subject to any reasonable restriction imposed by law". However, restrictions under law are expansive, unreasonable and clearly in violation of ILO Convention 87 ratified by the government. The 2002 Industrial Relations Ordinance (IRO) remained in force, as the government failed to fulfil promises to the unions, the ILO and the international community to amend the law to bring it in line with international standards.
Many sectors excluded: The IRO 2002 only covers industrial workers producing goods or services for sale. Thus many sectors are excluded, and workers in them may not form unions or bargain collectively. The list of excluded industries and sectors includes the railways, ports, security printing facilities, oil and gas industries, post and telecommunications, the Pakistan Television and Pakistan Broadcasting companies, civil aviation, fire fighting, agricultural workers, teachers and education institution workers, hospitals, clinics, and nursing homes, nonprofit organisation workers, and security/watch services at energy or transport facilities. Supervisory and managerial personnel are also all excluded.
The IRO also contains a special provision that allows the government to restrict associational rights of any category of workers by declaring them to be "servants of the state".
Significant restrictions on union registration: There is a legislative barrier to registration owing to the wide powers given to the Registrar of Trade Unions, who can refuse or cancel a union's registration. In particular, the IRO 2002 appears to disallow the registration of occupational or sectoral trade unions by providing that only unions of workers engaged in the same establishment or industrial undertaking may be registered (Article 6(2)a). The powers of the registrar to cancel trade union registration under Article 12 (3) are contrary to the principles of freedom of association, which provide that cancellation of union registration should only be possible through judicial channels.
Interference with union activities: The IRO gives the Registrar wide powers to investigate and audit union accounts as "deemed fit", and there are broad powers for the labour court to exclude or disqualify a union office bearer from holding further office, not all of which are related to the capacity of the individual to hold a trade union office.
IRO fails to protect workers: Section 46(5) in the IRO 2002 sets out that the Labour Court may order an award of compensation (12 to 30 months' wages) in case of wrongful termination in lieu of reinstatement of the worker. This enables employers to sack "troublesome" workers, such as trade union representatives, with impunity.
The IRO also restricts the possibility of seeking interim relief from the National Industrial Relations Commission (NIRC) or the Labour Court against unfair labour practices. Furthermore, the penalties imposed on trade union representatives found guilty of unfair labour practices are comparatively heavier than those imposed on employers.
Reform of labour laws – workers still waiting: During the year, the government again failed to change the IRO in line with international labour standards despite promises to the ILO. Nor has it made any progress in consolidating the over 60 laws covering labour issues into six core laws beyond the IRO promulgated in 2002.
However, without adequate prior consultation with the trade unions, the government did make unilateral changes to five different labour laws, effectively increasing hours of work and further weakening labour protection. The amendments were made using the finance law in a procedure that unionists called legally dubious. A separate classification of "contract workers" who are not eligible for overtime pay raised significant concerns among unionists that employers may accelerate the re-classification of permanent workers (with full union rights) to more vulnerable "contract workers".
Strike limitations: There are many legal obstacles to the right to strike. For example, it takes at least one month before a strike can be legally declared. The period for bilateral dialogue between management and the union is 15 days. Where settlement is not reached, the conciliation procedure also lasts 15 days. Cooling off periods also must be observed before a legal strike can be held.
The IRO does not provide any clarity regarding the right to strike in search of problems posed by major social and economic policy trends and whether workers may conduct sympathy strikes without penalty.
Leaders of legal strikes are protected in law from retribution.
Employers engaged in serious anti-labour practices are liable to fines but not to imprisonment.
The government has the right to ban any strike that may cause "serious hardship to the community" or prejudice the national interest. The government may also put an end to any strike that has lasted for more than 30 days. The 1999 Anti-Terrorist Ordinance codifies the crime of a "terrorist act". This includes "acts of civil commotion", which carry a penalty of imprisonment for terms ranging from seven years to life, as well as fines. Illegal strikes, go-slow actions, and picketing are also considered as forms of "civil commotion" under this Ordinance.
Collective bargaining: Industrial workers may elect representatives to act as collective bargaining agents, and legal unions generally have the right to bargain collectively. Every collective bargaining agent is required to affiliate with a federation at the national level that is registered with the National Industrial Relations Commission.
Limited rights in public sector: The Civil Servants Act, 1973, sets the terms and conditions of employment for this category of public sector workers. These employees may not engage in collective bargaining. Their organisations do not have the right to be fully independent and merely exist as associations, not trade unions. The Act does not allow civil servants to form and join trade unions, to draw up their constitutions and rules or to organise their administration, activities and programmes without previous authorisation.
The 1952 Essential Services Maintenance Act (ESMA) covers state administration, government services, and state enterprises such as oil and gas production, electricity generation and transmission, the state-owned airline and ports. Workers in most of these sectors may form unions but cannot go on strike. The ESMA provides for up to one year's imprisonment for anyone who contravenes the ban.
Hospital staff, some civil servants and workers in many defence-related establishments may not form unions. These definitions are broad, effectively denying many workers their rights. Forestry workers, for example, are considered civil servants, while many railway lines are classified as "defence installations" and consequently their workers as defence personnel.
The ESMA also restricts collective bargaining. In sectors covered by ESMA, wage levels are decided by special tripartite wage boards. Decisions of these boards, which usually were not acceptable to unions, can only be appealed to the NIRC.
In November 2001, the government amended the Civil Servants Act to prevent public sector workers from appealing to the National Industrial Relations Committee and labour courts against dismissal and to prohibit any court intervention in such matters. This applies to almost two million workers.
No freedom of association for airline or electricity workers: In various state enterprises, the government and military continually demonstrated an anti-union bias by either banning trade unions outright or petitioning to revoke the union registrations. Trade union rights have been suspended at Pakistan International Airlines Corporation and at the Karachi Electric Supply Corporation (KESC). The Pakistan National Shipping Corporate, Army Welfare Sugar Mills and the Karachi Shipyard and Engineering Works were the latest examples of the government's action against unions (see section on Violations).
Restrictions in banking sector: Amendments to the Banking Companies Ordinance in 1997 state that a worker cannot become a union member or official in a banking institution unless he or she is employed by the bank in question, thereby restricting the right of union members to choose who will represent them. They also stipulate that no officer or member of a trade union in a banking institution shall use any bank facilities, including a car or telephone, to promote trade union activities. Similarly, trade union activities are restricted in office hours. Any person violating such provisions shall be liable to a fine or imprisonment of up to three years, or both. Restrictions have also been imposed on the collective bargaining rights of banking staff.
Export processing zones (EPZs): There are a total of 22 EPZs established under the authority of the Export Processing Zones Authority of Pakistan (EPZA).
The ESMA prohibits workers in EPZs – who could otherwise have come under the IRO – from forming or joining unions, bargaining collectively or striking. They have no protection against employer interference or anti-union discrimination. The Export Processing Zones Act of 1980 also provides for notifications to exempt the zones from coverage under the major labour laws.
The government reported in 2002 that it had authorised the EPZA to frame draft legislation and that draft labour laws were being finalised by the authority. However, no further details have been forthcoming. However, the EPZA advertises on its website that one of the incentives for investors is "production-oriented labour laws to be solely regulated by the Authority".
Reports have been received that in the Sindh and Punjab provinces, certain employers have been exempted from labour inspection. Both these provinces have significant EPZ activities.
Code of Criminal Procedure: Section 144 of the Code of Criminal Procedure makes any gathering of more than four people subject to police authorisation. Hence it can easily be used against any trade union gathering.
Trade union rights in practice and Violations in 2007
Background: Hundreds of people lost their lives in Pakistan following terrorist attacks in 2007. One of those attacks, on 27 December, cost the life of opposition leader Benazir Bhutto and at least 21 other people.
A state of emergency was declared on 3 November by Pakistan's military leader, General Musharraf, on the pretext of combating extremist movements (his opponents believe the decision was probably in anticipation of a Supreme Court ruling on the legality of his re-election one month earlier). The state of emergency was accompanied by the suspension of fundamental freedoms, including freedom of association and the right of assembly, the imposition of heavy restrictions on the media and the arrest of trade unionists, members of the opposition, lawyers and human rights activists.
The ITUC together with its Pakistani affiliate the Pakistan Workers' Federation (PWF) demanded the immediate restoration of the rule of law, of the national constitution and of citizens' fundamental democratic rights.
Employers circumvent legislation: Employers artificially promote workers to managerial status, usually without the concomitant salary increase, so that they no longer qualify for union membership. Employers often strongly resist the unionisation of their employees, with management resorting to intimidation, dismissal and blacklisting. Moreover, if an employer is opposed to the formation of a union, the procedures for union registration and the appeals process can take many years.
However, there was some hope for workers in June 2005 when the NIRC overturned a government notification of April 2004, through which over 700 members of the House Building Finance Corporation Workers' Union were restrained from carrying out trade union activities after being promoted to assistant managers. The council found that the nature of their job had not changed, and they were therefore deemed to be workmen.
Strikes: The rare strikes that do occur are, given the complications attached to organising a strike, usually illegal and short. They are often broken up by police and used by employers to justify dismissals.
Weak labour law enforcement by state governments: The Factories Act of 1934 provides for inspection of enterprises, but this authority has been increasingly assumed by state governments. Unionists report that the net result has been that labour inspections are hardly ever performed, and the employers are therefore able to violate key provisions of the law on wages and conditions of work with impunity.
Anti-union discrimination in banks: According to United Bank Employees' Federation, union members have been ruthlessly victimised by the management of banks, particularly in United Bank Limited (UBL). In recent years, hundreds of trade union leaders have been dismissed under the terms of the Banking Companies (Amendment) Act, 1997, in what the Federation believes is an attempt to undermine the very existence of the United Bank Employees' Federation. The government has not acted on the ILO's request that it amend the Act.
Women: Rubina Jameel, president of the Working Women's Organisation (WWO), reported in 2004 that women trade union activists face accusations of "bringing dishonour" on their families if they try to organise women workers. Ms Jameel herself has been criticised by religious groups for "corrupting women" and being "against Islam" because of her work.
Many trade unionists arrested after declaration of state of emergency: Mohammad Ashiq Bhutta, information secretary of the National Federation of Food Beverages and Tobacco Workers, an affiliate of the IUF, was arrested at his home at 3:00 a.m. on 4 November 2007 and detained for 14 hours.
Liaquat Ali Sahi, trade union leader at the State Bank of Pakistan and the organiser of the Karachi Pearl Continental Hotel Workers' Solidarity Committee; Ghulam Fareed Awan, assistant general secretary of the All Pakistan Trade Union Federation (APTUF)-Sind Province; and Ayub Qureshi, member of Pakistan Trade Union Federation (PTUF) were among those arrested on 5 November during a protest demonstration against the declaration of a state of emergency. Members of the Pakistani Federation of Chemical, Energy, Mine and General Workers' Union were also arrested. Liaquat Ali Sahi and four others were charged with treason, an offence that carries the death penalty. Liaquat Ali Sahi, Ghulam Fareed Awan and Ayub Qureshi were released on bail on 23 November after 18 days in detention.
Rana Ayub Aki Khan, leader of the ICEM-affiliated WAPDA (Water and Power Development Authority) Labour Union (PWLU), was also arrested on 5 November with four colleagues. His union had protested against mismanagement at public utility services. All five were released from the Gujranwala prison, Punjab Province, on or around the 12 November.
Waheed Ahmad and Tariq Javeed, of the Pakistan Labour Federation (PLF, affiliated to the ITUC) and members of the Pakistani Federation of Chemical, Energy, Mine and General Workers' Union, were arrested on 5 November in the Lahore High Court building. On 6 November they were brought before an anti-terror court and imprisoned.
Many members of the IFJ-affiliated Federal Union of Pakistan Journalists were detained for their role in fighting for the restoration of the rule of law, democracy and the freedom of expression.
In September, during a strike at Unilever, the police in Punjab arrested the President of the National Federation of Food, Beverages and Tobacco Workers on charges of disturbing public order, threatening management and forcing employees to not work. At the end of 2007, Unilever dismissed about 350 employees and called in the police to put an end to the strike.
Teachers' unions banned in Sindh province: Teachers' unions or associations of teachers and all other employees under the authority of the Education Department were banned in the Sindh province further to a government order in July 2006. The order affected over 400,000 teachers and education personnel at the provincial and district level. The Sindh Professors and Lecturers Association (SPLA) and the Government Secondary Teachers Association (GASTA) immediately filed no less than four petitions with courts challenging the order, organised demonstrations and launched a campaign against the order. Their actions led to the arrest and dismissal of numerous union members.
The Sindh High Court ruled on 12 December 2006 that the government ban on teachers' organisations was contrary to constitutional guarantees of freedom of association. The court further overturned the punitive actions, including termination notices, taken by the Education Department against teacher union activists and those involved with the legal petitions. The Education Minister immediately stated the intent of the Sindh Government to appeal to the Supreme Court of Pakistan. In February 2007 the Supreme Court ruled against the teachers and suspended the decision of the Sindh High Court.
Progress at Coca-Cola: After months of anti-unionism, tough local negotiations (see the 2006 Annual Survey) supported by an international IUF campaign led to the IUF's affiliate representing Coca-Cola workers in Pakistan securing significant written guarantees on union recognition and job security. An agreement signed on February 22 in Karachi guarantees the company has to recognise and consult with the union in future when issues affecting jobs arise. It also ensures that in future any permanent workers whose position becomes vacant will be replaced by other permanent workers. Both represent major achievements by the union in a country where such rights are rarely secured or respected.
Court forces Nestlé to recognise trade union election results: On 28 July the Punjab Labour Court ruled in favour of the Employees Union at Nestlé Milkpak, a member of the IUF-affiliated National Federation of Food, Beverage and Tobacco Workers, reaffirming the right to free union elections. The decision brought to an end months of intimidation and harassment by Nestlé management, which had attempted to force the democratically elected union president, Mohammad Hussein Bhatti, to resign.
Over the preceding year, the management at Nestlé Kabirwala interfered in union elections, overturning the election results; dismissed the elected union president, Brother Bhatti; fabricated signatures in court petitions; and violated a series of court orders following Mr. Bhatti's reinstatement by the Labour Court. Despite being refused entry into the factory, Mr. Bhatti won the union elections on 27 February 2007. Management continued to prevent him from entering the factory, however, and petitioned in court for his dismissal.
On 28 July the Punjab Labour Court rejected the management's petition. The Court also directed the registrar of trade unions in Punjab to validate the election of Mr. Bhatti and all the office bearers in his team.
Unilever steps up its anti union actions: The IUF reported that Unilever management stepped up its attacks on the union at its Rahim Yar Khanen factory with a massive presence of armed police, elite soldiers and private security guards at the factory. When the union announced its intention of opening up membership to "temporary" staff, several of whom had worked at the factory for many years, and help them obtain the status of permanent staff, granted in law to all employees with more than nine months continuous service, the company responded by dismissing all but five of its 292 temporary employees. They were replaced by occasional workers recruited by agencies and who have no legal possibility of acquiring permanent status.
Banning trade unions at the behest of the Pakistan military: The Registrar of Trade Unions of Sindh banned the trade union at Karachi Shipyard and Engineering Works (KSEW) on 26 August 2006, stripping 3,000 workers of their right to freedom of association. The ban effectively short-circuited union bargaining efforts with KSEW management over a number of pending union demands. The unions took the case to the Sindh High Court, challenging the legality of the ban. The Court had not delivered its verdict by the end of the year.
Pakistan National Shipping Corporation (PNSC) shuts out the union: The state-owned PNSC has conducted a continuous campaign of harassment against the All Pakistan Seamen's Workers Union (APSWU), seeking both to intimidate and punish union leaders and consistently refusing to bargain with the union.
The PNSC also used legal injunctions to prevent the APSWU from boarding PNSC ships to meet with its members. Rather than bargaining, the PNSC filed a legal challenge to the status of the APSWU as the workers' representative. Management's challenge was denied by the National Industrial Relations Commission, but despite the ruling PNSC continued to bar APSWU from having access to seafarers on PNSC ships.
Pakistan International Airlines (PIA) continues to refuse unions: Pakistan Chief Executive Order no. 6/2001, which suspended the status of all the unions in PIA and abrogated the agreements between PIA management and unions, continued in force. Appeals by the unions to rescind the order and enter in negotiations were ignored by the government and PIA management, whose clear policy of anti-union discrimination remained in force.
Brick kiln unions organise against bonded labour – but face restrictions: Pakistan's brick-kiln employers continue the peshgi bonded labour system, despite a ruling by the Supreme Court that has outlawed this work arrangement. Government authorities in Lahore denied the Pakistan Bhatta (Brick-Kiln) Workers Union's (PBWU) request for a protest permit, while in the Toba Tek Singh district of Sindh province the police banned the rally. Pakistani NGOs estimate that between 1.5 and 2 million workers are caught in bonded labour systems, many of them in brick production in Sindh province, where threats and financial vulnerability strip the workers of their right of association and power to organise and bargain collectively.