akistan is the fifth most populous country in the world, having a population of 241 million, of which around 61 percent live in rural areas. It has a labour force of 85.5 million, of which women constitute 23 percent (19.59 million). Agriculture employs 37.4 percent (30 million workers) while 63 percent (51 million) of the workforce is engaged by the non-agricultural sectors, a combination of services (30 million) and industry (20.5 million). Despite having a large labour force, less than 3 percent (2 million workers) of the employed labour force is unionised. By any measure, trade unions are weak and limited in number. A 2018 study by the ILO showed that Pakistan had 7,096 unions and only 1,390 collective bargaining agents.

In a landmark decision (2018 SCMR 802), the Supreme Court, while declaring the Industrial Relations Act, 2012 (IRA 2012) to be intra vires the constitution, established that the enactment of IRA 2012 was in line with Entries 3 (the implementing of treaties and agreements) and 32 (international treaties, conventions and agreements) in Part I of the federal legislative list, which exclusively endow the parliament with the power and duty to discharge its obligations under various international conventions, covenants and agreements. However, the decision did not consider whether the IRA 2012 complied with the provisions of international treaties and agreements.

The right to freedom of association is considered a social, economic and political right available to all persons. The principle of freedom of association is not only enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, but also in the ILO Constitution (1919), the ILO’s Philadelphia Declaration (1944), the ILO Declaration on Fundamental Principles and Rights at Work (1998) and ILO fundamental Conventions, namely the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Pakistan in 1951, and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Pakistan in 1952.

At the Labour Day Conference, jointly arranged by the National Industrial Relations Commission and the International Labour Organisation on May 1, we were asked to analyse the status of IRA 2012 on global labour standards. For that purpose, we looked into the constitutional provisions, requirements of ILO fundamental Conventions (C.87 & C.98), comments and observations by the ILO Committee of Experts on Application of Conventions and Recommendations and reports of the ILO Committee on Freedom of Association on pending cases. The following reforms are needed to ensure compliance of the IRA 2012 with relevant global standards on the subject.

Expanding coverage of IRA 2012.

The IRA 2012 and its provincial variants are essentially “exclusionary legislations,” both explicitly and implicitly excluding large swathes of workers. The relevant ILO conventions allow the authorities to limit the right to freedom of association for armed forces and police only. However, the IRA 2012 also explicitly excludes public servants engaged in the administration of the state, managerial and administrative employees; workers employed by the charitable establishment or institution for the treatment or care of sick, infirm, destitute and mentally unfit persons; and workers in Export Processing Zones. The list of implicit exclusions is even longer. The IRA 2012 does not cover informal sector workers, agriculture workers, construction workers, sanitation workers, platform or gig workers, religious workers and self-employed workers like domestic workers, street vendors, transport workers and home-based workers.

This situation can be improved by introducing a simple definition of worker that encompasses all forms of employment and other types of dependent work, expressly according rights of organisation and collective bargaining to all workers, except armed forces and police. This reform shall also ensure that workers’ organisations are not deprived of a substantial proportion of their actual or potential membership due to the current legal definitions of “worker” and “employer.” The reform will extend freedom of association and the right to collective bargaining to EPZ workers and enable senior managerial workers to establish and join organisations that can adequately defend their occupational interests.

Membership of more than one trade union.

The current provisions of the IRA 2012 forbid multiple trade union memberships for a worker, even where these correspond to different jobs. Given that some workers may be working at two or three different places, they should be allowed to join a trade union at each workplace. The current labour legislation in Pakistan also does not recognise or regulate part-time work. The first step is to recognise the existence of part-time employment and allow workers engaged in different jobs at different workplaces to join a trade union at the respective workplaces. Moreover, ILO CEACR has recommended allowing workers to simultaneously join trade unions at the enterprise, sectoral and national levels.

Minimum membership requirements.

IRA 2012 requires that every third or subsequent union must have at least 20 percent of workers employed in an establishment as its members. This means that in a workplace with 500 workers, registering a third union would require 100 workers as members. Interestingly, there are no minimum membership requirements for the first two trade unions, which means that, at times, ‘pocket or yellow unions’ (unions formed or influenced by the employer to undermine the rights of workers) can be registered by the employer to frustrate trade union rights of workers. ILO CEACR has suggested that “no distinction as to the minimum membership requirement is made between the first two or more registered trade unions and newly created ones.” Given this, it has been suggested to either remove the minimum membership requirement or impose it on all trade unions.

Trans-provincial establishments.

The IRA 2012 defines “trans-provincial” as any establishment, group of establishments, industry, having its branches in more than one province. Given the lack of clarity under the IRA 2012 as to which is a trans-provincial establishment, this has led to the exploitation of workers’ rights to form and join trade unions and redress individual grievances. It is proposed that the definition of trans-provincial establishments be amended by setting a reasonable percentage of workers employed in more than one province (e.g., at least 5 percent of workers employed in one province). The NIRC, in its decisions from August 2022, has also endorsed the proposal of having a reasonable number of employees based in other provinces while registering a trans-provincial union.

Rights of minority unions. Under the IRA 2012 and its provincial variants, the rights to represent workers in proceedings, check-off facilities, give notice of and declare a strike are available to the most representative trade unions (collective bargaining agents). ILO CEACR is of the view that the minority unions, i.e., non-CBA unions, should be allowed to represent their members in grievance and disciplinary proceedings; to have access to check-off facilities; and to give notice and declare a strike for their members, when a non-CBA union is the only union at the workplace.

Availability of check-off facility for non-CBA unions is necessary for the sustainability of trade unions even after losing a secret-ballot election. This data could also be used to confirm trade union membership of all registered trade unions at a workplace. The IRA 2012 prevents unions with a membership of less than 33 percent of total workers in an establishment from bargaining, even on behalf of their members. It is recommended that a single trade union in an enterprise with less than 33 percent membership be allowed to act as a collective bargaining agent for its members. If the said trade union attains a membership of more than 33 percent of the total workforce, it can be certified as the sole collective bargaining agent. It is also important to allow minority unions to perform collective bargaining functions, jointly or separately, on behalf of their members before holding a referendum and certification of the CBA.

Is ‘go-slow’ an unfair labour practice?

IRA 2012 restricts lawful industrial action, i.e., go-slow, as an unfair labour practice that can lead to a worker’s dismissal from employment and cancellation of a trade union registration. The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, also treats go-slow as misconduct. It is suggested to allow go-slow as a lawful form of collective action and regulate it by requiring a minimum notice (3-5 days), remove the reference to go-slow as unfair labour practice as well as misconduct under the Standing Orders Ordinance 1968; consider only “an illegal strike or an illegal go-slow” as unfair labour practice.

Excessively broad grounds for restricting or prohibiting strikes

Various sections under IRA 2012 permit the government to restrict or prohibit strikes on excessively broad grounds: when a strike lasts for more than 30 days; at any time before the expiry of 30 days if it is satisfied that the continuation of such a strike or lock-out is causing serious hardship to the community or is prejudicial to national interest; and relating to a dispute that the NIRC is competent to adjudicate and determine at any time before or after the commencement of a strike.

This essentially means that the right to strike can be easily frustrated. Given this, it is suggested that the list of essential services and public utility services be redefined under the IRA 2012. Strikes can be prohibited in essential services (services whose interruption would endanger the life, personal safety or health of a part or the whole of the population). In contrast, public utility services must maintain a minimum service (30 percent of total workers) during the duration of industrial action or strike. The decision to suspend or prohibit strikes should lie not with the government but with the NIRC/ Labour Courts.

The current legislation, IRA 2012 and its provincial variants, has been used for union-busting instead of facilitating workers’ ability to unionise and bargain collectively. It is time for the state to take action and adhere to the constitutional provisions (Articles 3 and 17, Entries 3 and 32 of the Federal Legislative List, Part I) and the 2018 Supreme Court decision to reform IRA 2012 to align it with international standards. The IRA 2012 also serves as the framework legislation for provinces. Therefore, any reform aimed at making labour legislation compliant with international labour standards should begin with the IRA 2012.

The writers work at the Centre for Labour Research, Pakistan.