2007 Annual Survey of violations of trade union rights - Pakistan
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Pakistan, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca16c.html [accessed 26 May 2017]|
|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 – 138 – 182
Pakistan's highly restrictive labour laws, combined with a near total lack of law enforcement, permitted unmitigated attacks by employers and state enterprises managers against trade union rights. Despite standing 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 unions for teachers, 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 once again 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, and only those 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 enterprises 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, non-profit 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."
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.
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 a 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.
Leaders of legal strikes are protected in law from retribution.
Employers engaged in serious anti-labour practices are liable to fines, but not 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".
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
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 when in June 2005, 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 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.
Violations in 2006
Background: President Pervez Musharraf continued to controversially serve concurrently as President and Chief of the Army. Human rights monitors and international human rights groups reported disappearances, use of torture against suspects by police, and a climate of impunity marked by close connections between influential elites and local authorities. However, one bright spot was the passage of the Women Protection Law in December which ended the most abusive sections of the Hudood Ordinances which among other things provides for imprisonment of women for alleged adultery.
Banning teacher unions in Sindh province: On 21 July, the Education and Literacy Department of the Sindh provincial government abruptly banned unions or associations among teachers and all other employees under the authority of the Education Department. The order affected over 400,000 teachers and education personnel at the provincial and district level. The order was formally approved by the provincial Governor of Sindh, and provided for disciplinary actions up to dismissal from the civil service, for any teacher found to be involved in union activities. The Sindh Professors and Lecturers Association (SPLA) and the Government Secondary Teachers Association (GASTA) immediately filed no less than four petitions challenging the order with Courts, and launched a campaign against the order.
The Sindh Government moved quickly to enforce its anti-union order by taking an array of punitive actions against the leaders and activists of the teachers' unions. A total of 34 teachers were immediately served with 'forced leave' orders, effectively suspending them indefinitely without pay. Another 150 teachers were threatened with dismissal, while many others faced various forms of harassment.
On 22 August, about 2,000 members of teachers unions in the province, grouped under the banner of the Sindh Employees Alliance (SEA), held a major protest against the order in front of the Karachi Press Club. More teachers would have joined, but they were barred by police who engaged in preventive detention of teacher leaders from the districts of Sukhur, Hyderabad, Dadoo, and other parts of the province to prevent them from travelling to Karachi to join the demonstration. When the marchers began to move towards the Governor's House, the provincial police attacked the peaceful demonstration with batons and tear-gas, injuring six teachers. Another 45 protesting teachers were arrested and hauled away to jail. The Sindh Government then proceeded to file criminal cases of rioting against a number of the teachers involved, using this charge as justification for their dismissal.
The Sindh High Court ruled on 12 December 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. The petition was filed and was under consideration by the courts as the year ended.
Coca-Cola uses outsourcing to undermine the union: Coca-Cola has a long record of anti-union activity in Pakistan and uses a mixture of tactics, including harassment and dismissals of union leaders and casualisation of the workforce, to achieve its goals. In years past, workers report that unions at Coca-Cola plants in Lahore and Gujranwala were busted, and in 2006, management turned its attention towards the Coca-Cola Beverages Staff and Workers Union which represents workers at the Coca-Cola Beverages Pakistan Limited (CCBPL) factory in Karachi. Management notified the union that it was planning to outsource all 29 union jobs in the maintenance and transportation sections. The union strongly opposed this move, and made clear its plans to use planned bargaining for a collective agreement in 2007 to limit management's power to continue casualising the workforce. On 9 December, management responded by unilaterally terminating 150 CCBPL permanent workers, including the union President, Vice-President, Treasurer and one additional union committee member.
When the union resisted this move, and rejected the severance package offered by the factory, the management rolled out an expanded "voluntary retirement" scheme. The union sought and obtained an interim court order on 23 December, barring management from conducting dismissals or other actions regarding employment until 8 January. However, CCBPL management blatantly violated this court order and continued to pressure union members to take the severance pay through a mixture of 'captive audience' meetings between senior supervisors and individual workers, and information distributed to the workforce. As the year ended, the union was preparing to file a contempt of court petition against CCBPL.
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 at the request of the Federal Minister of Defense Production, 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 clear prior intent of the Ministry of Defence Production to bust the union was evident from 5 August, when the Ministry unilaterally ordered a change in status for the KSEW from a private company to "public limited company", despite the fact that an estimated 80 per cent of KSEW's production goes to private sector concerns. The result of this change was to make the company more directly vulnerable to government intervention in labour affairs. Not surprisingly, the Ministry cited this change in status when issuing its banning order against the union. At the end of the year, the ban was still in place with little likelihood of any change.
Pearl Continental Hotel – some union victories but management hostility continues: The Pearl Continental Hotel Employees' Trade Union, the legally recognised representative of workers at the five-star Pearl Continental Hotel in Karachi, claimed several important victories during the year in its efforts to compel management to recognise the union. The biggest victory was the final dismissal by the Labour Court of the hotel management's legal case filed in 2002 seeking the cancellation of the union's registration. In May, the Labour Court ordered the hotel to reinstate union leader Mohammed Ashraf with full back pay and benefits more than four years after he had been fired.
Despite these victories, the core issue – union recognition and negotiation of a collective bargaining agreement – continues to be denied by hotel management six years after the union was organised. Meanwhile, in July at the sister Pearl Continental Hotel in Lahore, the Labour Court ordered the conditional reinstatement of the union President, Nasir Aman Sindhu. His permanent reinstatement was pending appeal at the Punjab High Court at the time of writing.
Busting unions and beating workers at state-owned sugar mills: A peaceful protest organised outside the Sindh Provincial Assembly in Karachi by workers from two closed-down state-owned sugar mills (located in Dadu and Thattah) of the Sindh Sugar Corporation was viciously attacked by police with batons on 11 May. Union leaders and rank and file worker activists were arrested, and the protest encampment broken up. The protest was part of a hard-fought campaign by the two unions over the closures and subsequent layoffs, which finally resulted in an agreement with the government on alternative employment.
Meanwhile, the anti-union campaign by management at the Army Welfare Sugar Mills, which operates directly under the jurisdiction of the Army Welfare Trust (AWT) of the Pakistan military continued. After the union refused management demands to dissolve the union (based on an order from the AWT), management filed a petition to de-register the Army Welfare Sugar Mills Workers Union. The Sindh Labour Court rejected the petition of the management, but management appealed the decision to Sindh High Court which reversed the Labour Court ruling and revoked the union's charter. The union was awaiting the results of its appeal at the Supreme Court at the time of writing.
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 fabricated charges of misconduct and indiscipline against six APSWU leaders in the PNSC for their activities, leading to their suspension and barring them from working on ships in Pakistan for three years.
During the year, the PNSC also sought and 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 in June by the National Industrial Relations Commission – but despite the ruling little changed, and at the end of the year, PNSC was continuing to bar APSWU from having access to seafarers on PNSC ships.
Pakistan International Airlines (PIA) continues to refuse unions: Another four unionists were suspended by Pakistan International Airlines in March for distributing union literature. 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 in 2006. Appeals by the unions to rescind the order, and enter in negotiations have been completely ignored by the government and PIA management. Two trade union leaders dismissed for their union activities in 2005 remained out of work. In May, as a final course of action, the eight unions at PIA, supported by the International Transport Workers Federation (ITF), called for a world-wide boycott of PIA until management and the government respect union rights. Six of the suspended trade unionists were permitted to return to work in December, but the PIA's clear policy of anti-union discrimination remained in force.
Brick kiln unions organise against bonded labour – but face restrictions: The Pakistan Bhatta (Brick-Kiln) Workers Union (PBWU) organised protests in March against the efforts of the brick-kilns to continue the peshgi bonded labour system, despite a ruling by the Supreme Court that has outlawed this work arrangement. The workers were also protesting the actions of many of the kiln owners who had shut down their factories, effectively locking out the workers, for a month to pressure the government to take action against the PBWU. Government authorities in Lahore denied the PBWU's request for a protest permit, while in Toba Tek Singh district of Sindh province the police banned the rally. Pakistan NGOs estimate that between 1.5 to 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.
Liaquat National Hospital – union registration still denied: The Liaquat National Hospital Workers' Union (LNHWU) continued to be denied registration on the grounds that the Hospital was a charitable institution. In fact the hospital had long ceased (in 1990) to be a charitable institution and was run on a commercial basis. The 75 union members who had been forced to resign their jobs remained out of work and during the year continued to be harassed by management, who used all possible means to keep union officials away from the hospital. Management even worked with local authorities to file trumped up charges against the unionists in the local courts. All the office bearers were subsequently acquitted by the magistrate of the criminal charges filed by the management, which has since appealed that decision. The union's court appeals against the illegal dismissals and the failure to register the union have met with continual delays.