Labour Rights and 18th Amendment

Book recommendation on the greatest lawyer for labour in history: Clarence Darrow: American Iconoclast

By Yasser Latif Hamdani

The 18th Amendment to the constitution was welcomed by all who want to see Pakistan a truly federal, progressive and democratic state where the federating units and the centre are balanced in terms of power and rights. Pakistan vests residuary powers in constituent units but the net thrown by the federation – federal and concurrent legislative lists – was so wide that residuary powers amounted to very little. The abolition of the concurrent list devolves real powers to the provinces.

Be that as it may, the parliament has erred by devolving the very important subject of labour to the provinces without saving any powers for itself. This has come as a significant blow to the workers. In all democracies – including staunchly capitalistic countries such as the United States of America – national labour unions and associations form a crucial political counterweight to the industrial and landed classes. There is a big question mark on the legal position of All Pakistan Trade Unions. Pakistan needs a constitutional left movement, and by devolving the labour sector to the provinces, the narrow-sighted politicians have ensured that the democratic left – already in the ICU – is euthanised immediately. In doing so, the Pakistan People’s Party has dug its own grave at the national level.

Nowhere has this been more acutely felt than in the province of Punjab, where the provincial government, heavily dominated by big business interests, has enacted a patently anti-labour act called the Punjab Industrial Relations Act 2010 (PIRA). Section 3(1) of the PIRA abolishes the right of workers to form unions in an establishment that employs less than 50 workers. Consider, for example, how many workers a single brick kiln employs. Not only is this law ultra vires section 17(1) of the constitution, but is in violation of Pakistan’s international obligations of labour rights. Even the jurisdiction of labour courts is questionable, as they are appointed by the provincial government without any interference of the provincial high court. Under Pakistan’s separation of powers doctrine, a judicial body has to be appointed through a mechanism that gives the higher judiciary a say. Sooner or later, all decisions by the labour courts will be subject to legal challenge on this ground alone.

Even where there are unions, outside representation on a union’s executive body has been reduced from 25% to 20%. Unions have long relied on ideological and academic support from this section and this has been crucial in union politics. By reducing their number, the provincial government has smoothened the jagged edges for employers. Even more serious is the by-passing of the Collective Bargaining Agent – a central feature of the Industrial Relations legislation in the past – allowing the employer to negotiate directly with an individual worker. In other words, the industrial employers of Punjab have been given a ready made device to divide and rule the workers and defeat any and all moves by the workers to organise for their rights.

The cumulative effect of these changes is that labour rights have been read out effectively from law. Not since the Industrial Revolution has the legal position been so bleak in our part of the world as under this law. The law – as it existed under the various Industrial Relations Ordinances promulgated by military dictators – included an elaborate mechanism which allowed the government, workers and employers to resolve disputes. This too has been omitted. Additionally, there is no mechanism for routine inspections, making enforcement of minimum wage in the province next to impossible.

Pakistan’s constitution talks great game about elimination of exploitation (Article 3), making provisions for securing just and humane conditions for work (Article 37 e), ensuring equitable adjustment of rights between employers and employees (Article 38 a), facilities for work and adequate livelihood with reasonable rest and leisure (Article 38 b), social security and social insurance etc (Article 38 c), and food, clothing, housing, education and medical relief (Article 38 d). But everything the PIRA has achieved is the exact opposite.

Sher Shah Suri – who achieved a level of development unparalleled in his time – had famously said that peasants and workers are the backbone of any empire and should be kept happy at all costs. We have failed miserably to live up to that glorious example from our past. Workers in Pakistan in general and Punjab in particular are the most oppressed lot in all of South Asia. Labour unions are a natural pressure valve for societies. Those who allow this valve to operate properly avoid bloodshed, revolutions and social unrest. Great Britain is perhaps one of the best examples in this respect, where the labour class was coopted and made a stakeholder in national progress, politics and governance.