The case of striking workers of a clothing brand show how laws are moulded to erode labour rights
Textiles is one of Pakistan’s largest industries and employs a sizeable workforce. It is also notorious for violations of labour laws -- violations that are usually considered unremarkable in mainstream activist and media circles.
Since May 2017 though, a local clothing brand has come under fire after some of its workers, hired through third party contractors and denied employment status, took to the streets to protest against abysmal working conditions, and to demand a living wage and security of employment. Represented by the National Trade Union Foundation, and with support from progressive groups, the striking workers were able to come to an agreement with the clothing brand management for the provision of employee cards to workers in third party units where its clothes are made, improved safety and sanitary conditions and payment of minimum wage. Within a few days of the announcement though, the management went back on its word and the workers found themselves back to square one.
While it remains to be seen how the dispute will pan out, one of the larger issues emanating from this debacle is the increasing precarity of contemporary forms of employment, whereby permanent jobs in the formal sector, with provisions for minimum wages, maximum working hours and overtime, safety and health regulations and precautions against arbitrary dismissal are being replaced by temporary jobs through third party contractors, with none of these safeguards.
When interviewed by local activists, the striking workers referred to the intolerable conditions of the workplace where even a visit to the toilet or a break to drink a glass of water was considered a disruption of productive time. Pushed to produce more and more each day, without any improvement in their pay or benefits, the workers foresaw no future. In fact, they were all temporary workers, despite having worked at the same establishment for two or more years.
What they seem to describe is perhaps best illustrated by anthropologist Anne Allison as an "uncertainty of time, where everyday efforts don’t align with a teleology of progressive betterment". When more work does not lead to better pay, and the three-month probation period turns into three years into life on probation but fails to turn into an employee card, one is left with… not so much a future as an eternity of ruptured time.
The term "precariat", a neologism formed by combining the words "precarious" and "proletariat", has become a popular way to refer to a growing numbers of workers globally who are chronically underemployed, or work on temporary contracts without any job security, additional benefits, union representation or a living wage. It has been argued that the precariat is a new class onto itself, one that replaces the traditional Marxist formulation of the proletariat, or the industrialised working class, existing long-term within the formal sector, with a guaranteed wage, labour protections and the ability to collectively organise against the capitalist classes.
When we think of precarious work, we tend to imagine people who do manual labour for daily wages, or who are hired as seasonal workers to help during harvests etc. But the evolution of capitalism has meant that the way the formal sector itself is structured has changed drastically, and to quote Richard Seymore, increasingly now "we are all precarious".
The striking workers and the textile industry in general are one example of workers who might have been considered permanent employees in the formal sector a few decades ago and afforded the necessary protections. But today they subsist as contract workers, eternally stuck in the transitory.
Anthropologists have often written about precarity in the context of warscapes. Hyder Al Muhammad for instance invokes Iraq under occupation as a place where the battleground becomes the everyday, and precarity becomes not so much a theoretical frame but a way of life. A place made possible by the breakdown of law and order and a collapse of the normal -- lacking any sense of determinacy. Perhaps the same could be said of the warzones within Pakistan -- of those who manage to subsist under drone attacks, military operations, surveillance and checkpoints in the tribal areas, people for whom, as journalist Madiha Tahirso eloquently puts, even ‘the ground was always in play’.
But precarity is not only a condition of warzones, of the Agambian state of exception. Counter-intuitively, it is built into the post-colonial legal system. For the litigants who toil their lives away in civil courts for property disputes, which would never resolve, precarity is not the breakdown of law but the possibility of rule of law itself. And for those, like the striking workers, who become fodder to legal innovations like subcontracting meant to bewitch the relationship of employer and employee into indiscernibility, it is yet again the law that brings precariousness to life.
Legal dictionaries define legal fiction as an assumption that something is true even though it may be untrue, made in order to "alter how a legal rule operates", and "for the furtherance of justice". But they omit to mention the role of legal fiction in defeating the selfsame justice, when wielded by corporations and capitalist interests. They omit to mention for instance, that enacted in 1868, the 14th amendment to the US constitution was meant to ensure that the freed slaves were afforded "equal protection of the laws" previously only reserved for white citizens, and their life and liberty was not threatened except through "due process of the law". But in the years hence, while discrimination against African Americans continued unabated and even intensified, it was corporate America that used this amendment to defeat labour and safety regulations by using the legal fiction that corporations are "persons" and have inalienable rights that cannot be interfered in by the state.
In the instant case, contracts with a third party for the provision and overseeing of labour are utilised as a legal fiction to bypass any labour regulations that would apply to the former establishment, thereby rendering it absolved of even the most basic responsibilities towards its own workforce.
While certain jurisdictions like India have passed legislation on the issue, Pakistan does not have a specific statute regulating the use of contract labour. Instead, the Supreme Court of Pakistan passed a landmark ruling on the matter in 2014 in a case involving the Fauji Fertilizer Company and National Industrial Relations Commission.
The court had considered the question of whether, in a contract between a company and a contractor for the supply of labour, the status of the employees supplied by the contractor would be that of the employees of the company or not. It relied upon an Indian Supreme Court judgment where it was stated that the true test for determining the status of the workers was to determine whether the goods produced or services rendered were for the business of the company. If the company choked the demand, would these workers have to be laid off? If yes, the Indian court urged the need to "lift the (contractual) veil" and examine the "naked truth, though draped in different perfect paper arrangements, that the real employer is the Management not the immediate contractor".
The Indian court also chided, "Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer… The court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya (sic) of legal appearances." Building on this argument, the Pakistani Supreme Court ruled that the word "employed by the company was wide enough to include workmen employed by the contractors of the company", that the courts should use a "multiple pragmatic approach" and interpret the relationship liberally to include various iterations.
Most importantly, the court ruled that where the contract was made as a "device to deprive employees of their legitimate benefits", the employees of the contractor will be treated as employees of the company. Three years down the line though, the Supreme Court’s decision does not seem to have changed much for the lives of ordinary workers denied even the recognition of being workers.
The workers’ dispute and the Labour Department’s disinterest in taking any action against the establishment’s use of contract labour to deny rights to its employees, shows how despite landmark judgments, the legal terrain remains difficult to mould. It is also a lesson in the conjuring powers of the legal fiction that is contract labour. And in the last instance, it is a reminder to the legal community, civil society and progressive activists to be vigilant and uncompromising when feel-good terms like economic liberalisation, free trade, labour flexibilisation, privatisation and outsourcing are bandied about to pave the way for enacting laws and practices that erode labour rights and deepen precarity in all domains.