THE guiding principle for drafting or revising labour legislation is its adherence to a) the constitution of the country; b) to the ILO Conventions and the ILO Declaration on Fundamental Principles and Rights at Work; and c) to bilateral and tripartite agreements.The other principle, essential for democratic governance, is consultation with key representatives in society for whose benefit the law is being drafted. Unfortunately, the governments, be it military-dictatorial or elected-‘democratic’, tend to set aside these guidelines when it comes to formulation and enactment of labour laws.Like the preceding laws — the IRO 1969 and IRO 2002 — the newly enacted Industrial Relations Act 2008, too, does not conform to the spirit of the constitution embodied in its various articles, specifically Article 17 which ensures the right to form an association or trade union to every citizen. Neither is the act in compliance with the ILO Conventions No. 87 (freedom of association) and No. 98 (right to collective bargaining). It also ignores earlier commitments made through tripartite agreements and labour policies. That the government did not hold consultations on its draft, prior to enactment, either with the workers’ representatives or employers is another breach of trust.With the exception of some positive clauses, the essential character of IRA 2008 remains restrictive and exclusionary, as was the case with IRO 1969 and IRO 2002. IRA 2008 excludes workers from the largest sector —agriculture, forestry, hunting and fishing — that tops the official list of ‘Major Industry Divisions’. This amounts to denial of rights to 22 million workers in this category alone.In addition, a significant number of public-sector establishments, besides police and the armed forces, are excluded from the ambit of this law. Furthermore, it excludes informal sector workers in urban industries and services sectors who officially constitute 70.7 per cent of the labour force in these sectors. IRA 2008 is, thus, steeped in the restrictive spirit of the old law of 1969 drafted 40 years ago at the height of the Cold War era, a time when workers’ rights were deemed inimical to the imperatives of economic development as well as the defence of the state, and democratisation was absent from the agenda of the then government.Nevertheless, as this act has been passed by an elected government as an interim legislation to be replaced by a better law in April 2010, the stakeholders have time to seize the opportunity, arrive at a consensus and submit recommendations for a legislation that ensures the rights of all workers and is beneficial to both employees and employers.This will not be the first time that the workers and employers’ representatives reach consensus. The Workers and Employers Bilateral Council of Pakistan (Webcop) had earlier submitted consensus draft documents in 2001 to the then government, prior to the enactment of IRO 2002, and later in 2003. Unfortunately, both drafts were bypassed.While the government has initiated the process of consultation with workers and employers, and has called for the Pakistan Tripartite Labour Conference on Feb 16 to deliberate on IRA 2008 as well as three other drafts, it is pertinent for all stakeholders to review both major flaws and strengths of the IRA 2008 so that weaknesses are removed and positive clauses are retained in the legislation expected to replace it in 2010.The most crucial flaw in IRA 2008 is its restrictive applicability as spelled out in Section 1. It denies the fundamental right to organise and the right to bargain collectively to the majority of workers. If we are committed to equality as intrinsic to social justice, then our industrial relations law must ensure that all workers in all sectors are enabled to exercise the entire set of core economic, social and political rights as are presently acknowledged for a small number, and implemented for an even smaller minority of workers.In Section 2, the definition of a crucial category, ‘contractor’, is omitted. Despite strong resistance against exploitation under the contract system, the role of ‘contractor’ in the current global economy cannot be wished away. The least that can be done to regulate the system for workers’ benefit is to define the term ‘contractor’ clearly.Also, in the definition of ‘settlement’, the word collective bargaining agent has been omitted altogether and thus undermines the role of the CBA in negotiation, conflict resolution and settlement. There are ambiguities in several other definitions that must be worked out through consultation between employers and workers’ representatives before formulating consensus recommendations.A weak point introduced for the first time in the history of labour legislation is inclusion of the word ‘international’ before the word ‘association’ in Section 3, sub sections (a) and (b), and omission of ‘respect the law of the land’. This totally unnecessary and unwise insertion and omission in national legislation would give undue legal space to MNCs vis-à-vis workers’ right of association. Currently there is no restriction on trade unions and their federations to join international trade bodies on their terms and conditions. Hence the use of word ‘international associations’ in place of ‘association’ is mala fide.There is no major discord between employers’ and workers’ representatives on what a robust draft labour legislation should or should not contain. Several consultative meetings held since January also indicate that agreement between the two parties on contentious phrasing and clauses can be worked out through sustained dialogue and hard work.In the upcoming tripartite labour conference, the government has indicated that three other draft laws would also come under discussion. These relate to employment and service conditions, occupational safety and health, and social safety nets. As has been the practice of successive governments in the past, these drafts are expected to be different from those circulated by the previous government.Just to revisit the process of drafting of legislation by the state, it is noted that in 2001 the division for labour and manpower shared six drafts of consolidated proposed laws with the stakeholders — employers’ federation, workers’ organisations and related civil society institutions. The drafts included the Industrial Relations Ordinance, the Wages Ordinance, Conditions of Employment Ordinance, Occupational Health and Safety Ordinance, the Human Resource Development Ordinance, and the Labour Welfare and Social Security Ordinance.In October 2002, Gen Musharraf enacted the Industrial Relations Ordinance 2002, overriding stakeholders’ comments and suggestions. The remaining five drafts were put on hold. In late 2006, a Draft Employment and Services Conditions Act was put on the official website bypassing the drafts prepared through tripartite consultations between state, employers and workers.It is time the present government laid the foundation of democratic and trustworthy procedure of legislation-making.
By Zeenat Hisam The writer is a senior research associate at the Pakistan Institute of Labour Education and Research.