After the 18th Constitutional Amendment, parliament stopped enacting legislation on labour matters as it was argued that the subject was devolved and legislation could be promulgated only by provinces. The Supreme Court of Pakistan, in its decisions dated 28 March 2018 has finally negated this and has argued that the federal legislature can still legislate on so-called devolved matters to discharge its obligations under international treaties and conventions.
I have always been supportive of federal government’s mandate to regulate labour matters after 18th amendment and wrote an article in Pakistan Today nearly 3 years using the same logic as was used by the Honourable Court a week ago.
Did you know that the federal government stopped promulgating labour legislation eight years ago after the enactment of 18th constitutional amendment in 2010? The general stance was that the subject of labour, along with many other social subjects, was devolved to provinces with the deletion on the concurrent legislative list. Thus, it was argued, the federal government had no authority to legislate in labour matters. The federal government was left with the functions of ‘reporting on international conventions’, ‘keeping a watch on labour legislation from an international perspective’ and ‘coordination of labour legislation among provinces’. This stance was aggressively promoted and propagated by the provincial governments, as well as the federal government. Any step beyond mere ‘coordination’ was taken as an affront and attack on the newly gained provincial autonomy.
The Supreme Court, in its landmark decision on March 28th 2018, has taken a different stand and has allowed federal legislation on all those issues covered under international conventions/covenants ratified by the state. The said judgment has also upheld the Industrial Relations Act of 2012 (IRA) to regulate trade union activities and industrial disputes at the trans-provincial level. The court has ruled that the National Industrial Relations Commission, formed under IRA 2012, has the legal jurisdiction to decide labour disputes relating to the enterprises operating in more than one province. It has further decided that Shaheen Airport Services, part of Shaheen Foundation, is not a charitable organisation and thus, cannot claim exemption from the industrial relations legislation.
Labour matters have been part of the concurrent legislative list since the enactment of the Government of India Act of 1935 and were kept as such in the constitutions enacted in 1956 and 1973. There was no concurrent legislative list in the 1962 Constitution, while the labour matters were not included in the central legislative list. The 18th Amendment to the Constitution removed this concurrent legislative list from the 1973 Constitution and rewrote the federal legislative list, indicating items within the sole purview of parliament.
The court has maintained that the entries in the legislative lists are only legislative heads or fields of legislation as these demarcate the area over which the appropriate legislatures can operate. Moreover, the legislative entries should be liberally interpreted, given the widest possible meaning and should not be read in narrow or restricted sense. The words in legislative entries extend to all ancillary or subsidiary matters which can reasonably be part of it.
The court ruled that entries 3 (the implementing of treaties and agreements) and 32 (international treaties, conventions and agreements) in Part I of the federal legislative list exclusively endow parliament with the power and duty to discharge its obligations under various international conventions, covenants and agreements. The decision further highlighted that the federal legislative list empowers parliament to legislate on matters that are within the legislative competence of the Majlis-e-Shoora (parliament) or relate to the federation (entry 58), and matters that are incidental or ancillary to any matter enumerated in the legislative list (entry 59).
What does this mean for labour rights in the country? It means that the devolution under the 18th Amendment has not freed parliament and the federal government from its obligations to ensure effective compliance with international standards in employment-related matters. The current notion that the federal government’s role is only coordination in labour matters has been quashed by the Supreme Court. Parliament and the federal government cannot hide their inaction on the miserable state of labour rights in the country behind the façade of the 18th Amendment and provincial autonomy.
In order to ensure conformity among the provinces as well as compliance with the ratified UN and ILO conventions and other international treaties, the federal legislature has the authority to provide for some basic standard, in the form of framework legislation, as enunciated in these international instruments. Parliament, through its legislation, can set the minimum standards.
Pakistan does not have a law requiring equal pay for work of equal value. Similarly, there is no specific law prohibiting workplace discrimination with the exception of some legislative tweaking in Khyber-Pakhtunkhwa and Sindh. A first relevant legislation would be enactment of anti-discrimination legislation requiring protection from discrimination in all employment-related matters and mandating equal wages for work of equal value. This legislation is a pre-requisite under the ILO conventions 111 (Discrimination in Employment and Occupation Convention) and 100 (Equal Remuneration Convention) already ratified by Pakistan in 1961 and 2001, respectively.
Article 7 of the International Covenant on Economic, Social and Cultural Rights (ratified in 2008) recognises the right of everyone “to the enjoyment of safe and healthy working conditions”. In order to give effect to this provision, the federal government can announce the framework legislation on occupational safety and health which can be adopted by the provinces as well. Similarly, federal legislation on child protection, child labour, persons with disabilities, etc, can be enacted, setting the minimum standards to be followed by the provincial legislatures.
As regards the issue of Shaheen Airport Services, it is commendable that the Supreme Court has upheld the decision of the Sindh High Court and has declared it a ‘non-charitable’ organisation and thus not eligible for exemption under the law. This issue needs further consideration as dozens of profit-making organisations working under trusts and foundations have been seeking exemption from industrial relations legislation claiming that they are charitable organisations. Labour departments have to take into account other factors, as enunciated in the Sindh High Court decision, instead of granting blanket exemption merely on the premise of working under a ‘trust or foundation’. Right to freedom of association and collective bargaining is the enabling right for all other workplace rights. Misclassifying the profit-making organisations as charitable organisations makes workers vulnerable to other workplace rights violations.