What is a trade union and what are relevant laws in Pakistan for trade union activities?
Labor law in Pakistan defines ‘trade union’ as a combination of workmen whose primary purpose is to promote and defend workers’ rights and interests in an industry or establishment.
The right to join association is guaranteed under article 17 of the Constitution of Islamic Republic of Pakistan, which says, “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 of the Constitution not only guarantees freedom of association but also collective bargaining as a fundamental right.
Keeping in view this provision, labour law in Pakistan allows formation and joining of trade unions/associations to both the employers and the employees. There is a special law in Pakistan for trade union registration and settlement of industrial disputes i.e., Industrial Relations Act. After passage of 18th Constitutional amendment, labor is no longer a subject on concurrent list i.e. central government can no longer legislate in labor related matters. The Industrial Relations Act 2012 consolidates the law relating to formation of trade unions and federations of trade unions, determining the collective bargaining agents, regulations of relations between employers and workers. It clearly states that workers have the right to form trade unions and join organizations of their own choosing without previous authorization. The Act further provides how to avoid and settle any disputes or differences. Both the National and Provincial Industrial Relations Acts do not restrict the workers from forming and joining the associations/unions of their own choosing.
After the devolution of the subject of Labour, each Province has enacted its own Industrial Relations Act. The Acts fundamentally provide for consolidating and rationalizing the Provincial laws to facilitate the formation of trade unions and improve the relations between employers and workers. The respective Provincial Acts are as follows:
- Balochistan Industrial Relations Act, 2010 (BIRA)
- Khyber Pakhtunkhwa Industrial Relations Act, 2010 (KPIRA)
- Punjab Industrial Relations Act, 2010 (PIRA)
- Sindh Industrial Relations Act, 2013 (SIRA)
Workers are entitled to join a union without previous authorization; however, they can become members of only one union at a time. If a worker joins more than one union at a time, his earlier membership will get cancelled. Moreover, both workers and employers have the right to join federations and confederations, which have the right to affiliate with international organizations. Banking Companies (Amendment) Act, 1997 restricts the involvement of outsiders in the executive body of a trade union and allows only those workers to be part of trade union executive who are actually employed in the bank. Normally, industrial relations legislation allows for 25% of trade union executive as outsiders.
Informal sector workers can form associations as guaranteed under the Constitution. The employers and employees, not covered by the industrial relation legislation, can form and register their organizations and associations as follows:
- Societies Registration Act, 1860
- The Co-Operative Societies Act, 1925
- Trade Organizations Act, 2013
Who can join a union?
Every Worker can join a union except those working in;
- Police or defense services of Pakistan
- Administration of state other than Pakistan Railways and Pakistan Post
- Pakistan Security Printing Corporation or the Security Papers Limited
- Hospital or institution for the treatment or care of sick, infirm, destitute or mentally unfit persons excluding those run on commercial basis (only trusts are exempted);
- Watch and ward, security or fire service staff of an oil refinery or an airport;
- Security or fire service staff of an establishment engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas
- Any services or installations exclusively connected with or incidental to the Armed Forces of Pakistan
- Export Processing Zone Workers (Notification S.R.O.1004 (1)/82 which exempted EPZs from labour laws)
Other than these, Industrial Relations laws are also not applicable to agriculture sector where around 42.27% of the labor force is employed (Labor Force Survey 2014-15). Agriculture workers are free to join and form associations, however, they can’t collectively bargain under the Industrial Relations Act as this law is not applicable to the agriculture sector. Interestingly, the industrial relations legislation in Balochistan (2015 amendment) and Sindh (2013) has allowed agriculture workers to form and join trade unions.
How can we register a union? What are the requirements? Please guide.
A trade union can apply for registration to the office of Registrar of trade union in a province. While submitting the application for registration, you need to attach a statement showing name and address of trade union, its date of formation, relevant information of its office bearers (like titles, names, ages, addresses and occupations), name of establishment and industry to which this union relates, total number of workers employed in establishment and the total paid membership, etc. Above-mentioned are called the requirements of application.
There are also registration requirements, which require that:
- All members of a trade union should be workmen, engaged in same establishment (you can’t take members outside your establishment)
- If there are two or more unions in your establishment, your membership must not be less 20% (some laws stipulate 25%) of total employed workforce (it means only 4-5 unions can exist in your establishment)
- Only up to 25% of the executive body members can be outsiders (those who are not actually employed as workmen in your establishment)
- The Constitution of your trade union should also provide information on
- Name and address of trade union
- Objectives of your trade union
- Usage of funds (purpose)
There are other requirements as well. Please go through the Industrial Relations Act of your province or capital territory, depending upon your location, for further information. After registration, the Registrar of trade unions will issue you a certificate of registration as a conclusive evidence of your trade union’s registration.
Registration of your union can be cancelled either by Registrar of trade unions or Labor Court. The Registrar can cancel your union’s registration if it:
- Did not apply for determination of CBA within 2 months of registration (in case no CBA already exists)
- Did not contest in a referendum for determining CBA
- Secured less than 15% of polled votes in a referendum for determining CBA
Please keep in mind that these are not the only reasons for cancellation of registration.
What is a Collective Bargaining Agreement and how is it determined?
Collective Bargaining Agent is a trade union, which is the elected agent of workers in an establishment. A collective bargaining agent is elected after holding a secret ballot election if there is more than one union in an establishment. However if there exists only one union and its members are at least one-third of total workers in an establishment and it makes an application for certification, then it can be certified as CBA by Registrar. In case of more than one union, Registrar is to hold a secret ballot election within 15 or 30 days (depending on establishment size) after having received application for determining status of CBA. Those who are eligible to vote are i) with at least 3 months of service, ii) members of a trade union contesting the elections and iii) registered as voters in the voters list. A trade union can’t be certified as CBA unless the votes received by it are at least 33% of total employed workers in an establishment. If no union receives at least 33 of total votes (of employed workers), a second election will be held between two unions, who have secured highest number of votes. Thus, the union that wins this run-off election will be certified as CBA. The CBA engages in collective bargaining with employer on any matter of employment, non-employment, terms of employment and working conditions. CBA also represents workers in any proceedings, gives notice of strike and nominates workers on boards of Provident Fund and Workers’ Participation Fund in an establishment.
Can you please tell us the process for declaring strike and lockout?
Strike is the cessation of work by a worker in establishment acting in combination or a concerted refusal of employed workers to continue to work to accept employment while lockout is closure. Similarly, suspension (of work) or refusal on employer’s part to continue employment of workers where this action is related to an industrial dispute or where aim of this action is to compel workers to accept certain conditions of employment also falls in the ambit of strike/lockout. It must be emphasized here that strike and lockout are not fundamental rights, in contrast to right to association and collective bargaining (under a 1997 Supreme Court decision).
Strike or lockouts can be declared only for industrial disputes and not for individual grievances. Only an employer or CBA can raise industrial disputes, while following certain steps. They first need to negotiate on any arising industrial dispute. If disputant parties are unable to resolve matter through negotiation, they can go for conciliation. On the request of employer or CBA, Federal or Provincial Governments can appoint a tripartite Board of Conciliators. If conciliation fails, both the parties can either go for arbitration (by an agreed upon arbitrator). The award of arbitrator is final and can’t be appealed against. However, if they don’t refer the matter to an arbitrator, CBA can go on a strike or employer can declare a lockout (both after serving necessary notices). While during the strike/lockout, any party can apply to Labor Court for adjudication.
Can Government prohibit a strike or lockout?
Government can prohibit an ongoing strike or lockout (before completion of 30 days), if it is satisfied that it is causing serious hardship to community or harmful for the national interest. Strikes and Lockouts are also prohibited in public utility services and disputes are referred by government for compulsory arbitration.
How are workers/trade union members protected from discrimination by the employer?
These Industrial Relations Acts provide for adequate protection against acts of anti-union discrimination by the management against members of the Union in respect of their employment. The law requires that an office bearer of a trade union must not be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar except with the permission of Registrar. Legislation clearly defines the unfair labour practices on the employer as well as on the part of worker. The unfair labour practices on the part of employer include:
(a) Imposition of any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union;
(b) Refusal to employ or refusal to continue to employ any person on the ground that such person is, or is not a member or office-bearer of a trade union;
(c) Discrimination against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is, or is not, a member or office-bearer of a trade union;
(d) Dismissal, discharge, removal from employment or transfer or threaten to dismiss, discharge or remove from employment or transfer a workman or injure or threaten to injure him in respect of his employment by reason that the workman:
(i) is or proposes to become, or seeks to persuade any other person to become, a member or office-bearer of a trade union; or
(ii) participates in the promotion, formation or activities of a trade union;
(e) Inducing any person to refrain from becoming, or to cease to be a member or office-bearer of a trade union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage for such person or any other person;
(f) Compelling or attempt to compel any office-bearer of the collective bargaining agent to arrive at a settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power and telephone facilities and such other methods;
(g) Interfering with or in any way influence the secret balloting for determination of CBA;
(h) Recruiting any new workman during the period of a notice of strike or during the currency of a strike which is not illegal except where the conciliator having been satisfied that complete cessation of work is likely to cause serious damage to the machinery or installation, has permitted temporary employment of a limited number of workmen in the section where the damage is likely to occur;
(i) Closing down the whole of the establishment in contravention of Standing Order 11-A of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; or
(j) Commencing, continue, instigate or incite others to take part in, or expend or supply money or otherwise act in furtherance or support of, an illegal lock-out.
Workers can also move a petition of “Unfair Labour Practice” to the Labour Courts under Section 17, 31 and 67 of the Industrial Relations Act 2012. The Industrial Relations legislation provides that whoever transfers, discharges, dismisses or otherwise punishes a trade union officer during the pendency of an application for registration is liable to imprisonment which may extend to fifteen days or a fine which may extend to thirty thousand rupees or both. Similarly, an employer who performs any of the above-referred unfair labour practices is liable to imprisonment, which may extend to 30 days or fine, which may extend to fifty thousand rupees or both. Similar provisions are found in Provincial Industrial Relations Acts.
March 2017; Next update January 2018