PART 1
Acts, Ordinance,
President’s Orders and Regulations
SENATE SECRETARIAT
Islamabad, the 11th
March, 2010
No. F. 9 (5)/2009-
Legis.__ The following Acts of Majlis-e-Shoora (Parliament) received the
assent of the President on 9th March, 2010, are hereby published for
general information:__
Act No. IV OF 2010
An Act to make
provisions for the protection against harassment of women at the workplace
WHEREAS the constitution of the Islamic
Republic of Pakistan recognizes the fundamental rights of citizens to dignity of person;
AND WHEREAS it is expedient to make
this provision for the protection of women from harassment at the workplace;
It
is hereby enacted as follows:
1.
Short title,
extent and commencement. - (1) This Act may be called the Protection
against Harassment of women at the
Workplace Act, 2010.
(2)
It extends to the whole of Pakistan.
(3)
It shall come into force at once.
2.
Definitions.
– In this Act, unless there is anything repugnant in the subject or
context,–
(a)
“accused” means an employee or employer of an
organization against whom complaint has been made under this Act;
(b)
“CBA” means
Collective Bargaining Agent as provided in the Industrial Relations Act 2008,(
IV of 2008) or any other law for the time being in force.
(c)
“Code” means the Code of Conduct as mentioned in the
Schedule to this Act;
(d)
“Competent Authority” means the authority as may be
designated by the management for the purposes of this Act;
(e)
“Complainant” means a woman or man who has made a
complaint to the Ombudsman or to the Inquiry Committee on being aggrieved by an
act of harassment;
(f)
“Employee” means a regular or contractual employee
whether employed on daily, weekly, or monthly or hourly basis, and
includes an intern or an
apprentice;
(g)
“Employer” in relation to an organization, means any
person or body of persons whether incorporated or not, who or which employs
workers in an organization under a contract of employment or in any other
manner whosoever and includes –
(i)
an heir, successor or assign, as the case may be, of
such person or, body as aforesaid;
(ii)
any person responsible for the direction, administration,
management and control of the management;
(iii)
the authority, in relation of an organization or a
group of organization run by or under the authority of any Ministry or
department of the Federal Government or a Provincial government, appointed in
this behalf or, where no authority is appointed, the head of the Ministry or
department as the case may be;
(iv)
the office bearer, in relation to an organization run
by or on behalf of the local authority, appointed in this behalf, or where no
officer is so appointed, the chief executive officer bearer of that authority;
(v)
the proprietor, in relation to any other organization,
of such organization and every director, manager, secretary, agent or office
bearer or person concerned with the management of the affairs thereof.
(vi)
a contractor or an organization of a contractor who or
which undertakes to procure the labour or services of employees for use by
another person or in another organization for any purpose whatsoever and for
payment in any form and on any basis whatsoever; and
(vi) office bearers of a department of a Division
of a Federal or a Provincial or local authority who belong to the managerial,
secretarial or directional cadre or categories of supervisors or agents and
those who have been notified for this purpose in the official Gazette;
(h)
harassment” means any unwelcome sexual advance, request
for sexual favors or other verbal or written communication or physical conduct of a sexual nature or
sexually demeaning attitudes, causing interference with work performance or
creating an intimidating, hostile or offensive work environment, or the attempt
to punish the complainant for refusal to comply to such a request or is made a
condition for employment;
(i)
“Inquiry Committee” means the Inquiry Committee
established under sub-section (1) of
section 3;
(j)
“management” means a person or body of persons
responsible for the management of the affairs of an organization and includes
an employer;
(k)
“Ombudsman” means the Ombudsman appointed under section
7
(l)
“organization” means a Federal or Provincial Government
Ministry, Division or department, a corporation or any autonomous or
semiautonomous body, Educational Institutes, Medical facilities established or controlled by the Federal or
Provincial Government or District Government or registered civil society
associations or privately managed a commercial or an industrial establishment
or institution, a company as defined in the Companies Ordinance, 1984 (XLVII of
1984) and includes any other registered
private sector organization or institution;
(m)
“Schedule” means Schedule annexed to this Act;
(n)
“workplace” means the place of work or the premises
where an organization or employer operates and includes building, factory, open
area or a larger geographical area where the activities of the organization or
of employer are carried out and including
any situation that is linked to official work or official activity
outside the office.
3. Inquiry
Committee. – (1) Each
organization shall constitute an Inquiry Committee within thirty days of the
enactment of this Act to enquire into complaints under this Act.
(2)
The Committee shall consist of three members of
whom at least one member shall be a
woman. One member shall be from senior management and one shall be a senior
representative of the employees or a senior employee where there is no CBA. One
or more members can be co-opted from outside the organization if the
organization is unable to designate three members from within as described
above. A Chairperson shall be designated from amongst them.
(3)
In case a complaint is made against one of the members
of the Inquiry Committee that member
should be replaced by another for that particular case. Such member may be from within or outside the
organization.
(4)
In case where no competent authority is designated the
organization shall within thirty days of the enactment of this Act designate a
competent authority
4.
Procedure
for holding inquiry.– (1) The Inquiry Committee, within three days of
receipt of a written complaint, shall–
(a)
communicate to the accused the charges and statement of
allegations leveled against him, the formal written receipt of which will be
given;
(b)
require the accused within seven days from the day the
charge is communicated to him to submit a written defense and on his failure to
do so without reasonable cause, the Committee shall proceed ex-parte; and
(c)
enquire into the charge and may examine such oral or
documentary evidence in support of the charge or in defense of the accused as
the Committee may consider necessary and each party shall be entitled to
cross-examine the witnesses against him.
(2)
Subject to the provisions of this Act and any rules
made thereunder the Inquiry Committee shall have power to regulate its own
procedure for conducting inquiry and for the fixing place and time of its
sitting.
(3)
The following provisions inter alia shall be followed by the Committee in relation to
inquiry:
(a)
The statements and other evidence acquired in the
inquiry process shall be considered as confidential;
(b)
An officer in an organization, if considered necessary,
may be nominated to provide advice and assistance to each party;
(c)
Both parties, the complainant and the accused, shall
have the right to be represented or accompanied by a Collective Bargaining
Agent representative, a friend or a colleague;
(d)
Adverse action shall not be taken against the
complainant or the witnesses;
(e)
The inquiry Committee shall ensure that the employer or
accused shall in no case create any hostile environment for the complainant so
as to pressurize her from freely pursuing her complaint; and
(f)
The Inquiry Committee shall give its findings in
writing by recording reasons thereof.
(4)
The Inquiry Committee shall submit its findings and
recommendations to the Competent Authority within thirty days of the initiation
of inquiry. If the Inquiry Committee finds the accused to be guilty it shall
recommend to the Competent Authority for imposing one or more of the following
penalties:
(i) Minor penalties:
(a)
censure;
(b)
withholding, for a specific period, promotion or
increment;
(c)
stoppage, for a specific period, at an efficiency bar
in the time-scale, otherwise than for
unfitness to cross such bar; and
(d)
recovery of the
compensation payable to the complainant from pay or any other source of the
accused;
(ii)
Major penalties:
(a)
reduction to a lower post or time-scale, or to a lower
stage in a time-scale;
(b)
compulsory retirement;
(c)
removal from service;
(d)
dismissal from service; and
(e)
Fine. A part of the fine can be used as compensation
for the complainant. In case of the owner, the fine shall be payable to the
complainant.
(5)
The Competent Authority shall impose the penalty
recommended by the
Inquiry Committee
under sub-section (4) within one week of the receipt of the recommendations of
the Inquiry Committee
(6)
The Inquiry Committee shall meet on regular basis and
monitor the situation regularly until they are satisfied that their
recommendations subject to decision, if any of Competent Authority and
Appellate Authority have been implemented.
(7)
In case the complainant is in trauma the organization
will arrange for psycho-social
counseling or medical treatment and
for additional medical leave.
(8)
The organization may also offer compensation to the
complainant in case of loss of salary or other damages.
5.
Powers of
the Inquiry Committee. – (1) The
Inquiry Committee shall have power–
(a)
to summon and enforce attendance of any person and
examine him on
oath;
(b)
to require the discovery and production of any
document;
(c)
to receive evidence on affidavits; and
(d)
(d) to
record evidence.
(2)
The Inquiry Committee shall have the power to inquire
into the matters of harassment under this Act, to get the complainant or the
accused medically examined by an authorized doctor, if necessary, and may
recommend appropriate penalty against the accused within the meaning of sub-section
(4) of section 4.
(3)
The Inquiry Committee may recommend to Ombudsman for
appropriate action against the complainant if allegations leveled against the
accused found to be false and made with mala fide intentions.
(4)
The Inquiry Committee can instruct to treat the
proceedings confidential.
6.
Appeal
against minor and major penalties.– (1) Any party aggrieved by decision of
the Competent Authority on whom minor or major penalty is imposed may within
thirty days of written communication of decision prefer an appeal to an
Ombudsman established under section 7 .
(2)
A complainant aggrieved by the decision of the
Competent Authority may also prefer appeal within thirty days of the decision
to the Ombudsman.
(3)
The Appellate Authority may, on consideration of the
appeal and any other relevant material, confirm, set aside, vary or modify the
decision within thirty days in respect of which such appeal is made. It shall
communicate the decision to both the parties and the employer.
(4)
Until
such a time that the ombudsman is appointed the District Court shall have the
jurisdiction to hear appeals against the decisions of Competent Authority and
the provisions of sub-sections (1) to (3) shall mutatis mutandis apply
(5)
On the
appointment of Ombudsman all appeals pending before the District Court shall
stand transferred to Ombudsman who may proceed with the case from the stage at
which it was pending immediately before such transfer.
7.
Ombudsman:- (1)
The respective Governments shall appoint an ombudsman at the Federal and
provincial levels.
(2) A person shall
be qualified to be appointed as an Ombudsman who has been a judge of high court
or qualified to be appointed as a judge of high court. The Ombudsman may
recruit such staff as required to achieve the purposes of this Act and the
finances will be provided by the respective Governments
8.
Ombudsman to
enquire into complaint.- (1) Any employee shall have the option to prefer a
complaint either to the Ombudsman or the Inquiry Committee. ‘
(2) The Ombudsman
shall within 3 days of receiving a complaint issue a written show cause notice
to the accused. The accused after the receipt of written notice, shall submit
written defense to the Ombudsman within five days and his failure to do so
without reasonable cause the Ombudsman may proceed ex parte. Both the parties can represent themselves before the
Ombudsman.
(3)The Ombudsman shall conduct an
inquiry into the matter according to the rules made under this Act and conduct proceedings as the
Ombudsman deems proper.
(4) For the purposes of an investigation
under this Act, the Ombudsman may require any office or member of an
organization concerned to furnish any information or to produce any document
which in the opinion of the Ombudsman is relevant and helpful in the conduct of
the investigation.
(5) The Ombudsman shall record his
decision and inform both parties and the management of the concerned
organization for implementation of the orders.
9.
Representation to President or
Governor:- Any
person aggrieved by a decision of Ombudsman under sub- section (5) of section
8, may, within thirty days of decision, make a representation to the President or Governor, as the
case may be, who may pass such order thereon as he may deem fit.
10.
Powers of the Ombudsman
The Ombudsman shall for the purpose
of this Act have the same powers as are vested in a Civil Court under the Code
of Civil Procedures, 1908 (Act V of 1908), in respect of the following matters,
namely:
i.
Summoning
and enforcing the attendance of any person and examining him on oath;
ii.
Compelling the
production of evidence;
iii.
Receiving
evidence on affidavits;
iv.
Issuing
commission for the examination of witnesses
v.
entering
any premises for the purpose of making any inspection or investigation, enter
any premises where the Ombudsman has a reason to believe that any information
relevant to the case may be found; and
vi.
The
Ombudsman shall have the same powers as the High Court has to punish any person
for its contempt.
(2)
Ombudsman shall while making the decision on the complaint may impose any of
the
minor or major penalties specified in
sub- section (4) of section 4.
11.
Responsibility
of employer.– (1) It shall be the responsibility of the employer to ensure
implementation of this Act, including but not limited to incorporate the Code
of Conduct for protection against harassment at the workplace as a part of their management policy and to form
Inquiry Committee referred to in section 3 and designate a competent authority
referred to in section 4.
(2)
The management shall display copies of the Code in
English as well as in language understood by the majority of employees at
conspicuous place in the organization and the work place within six months of
the commencement of this Act.
(3)
On failure of an employer to comply with the provisions
of this section any employee of an organization may file a
petition before the District Court and on having been found guilty the
employer shall be liable to fine which may extend to one hundred thousand
rupees but shall not be less than twenty-five thousand rupees.
12.
Provisions
of the Act in addition to and not in derogation of any other law.– The
provisions of this Act shall be in addition to and not in derogation of any
other law for the time being in force.
13.
Power to
make rules.-The Federal Government may make rules to carry out the purposes
of this Act.
Schedule
[See sections 2(c) and 11]
CODE
OF CONDUCT FOR PROTECTION AGAINST HARASSMENT OF
WOMEN
AT THE WORKPLACE
Whereas it is
expedient to make the Code of Conduct at the Workplace etc to provide
protection and safety to women against harassment it is hereby provided as
under:
(i)
The Code provides a guideline for behavior of all
employees, including management, and the owners of an organization to ensure a
work environment free of harassment and intimidation;
(ii)
“Harassment” means any unwelcome sexual advance,
request for sexual favors or other verbal or written communication or physical
conduct of a sexual nature, or sexually demeaning attitudes, causing
interference with work performance or creating an intimidating, hostile or
offensive work environment, or the attempt to punish the complainant for
refusal to comply to such a request or is made a condition for employment;
The above is
unacceptable behavior in the organization and at the workplace, including in
any interaction or situation that is linked to official work or official
activity outside the office.
Explanation:
There
are three significant manifestations of harassment in the work environment:
(a) Abuse of authority
A demand by a person
in authority, such as a supervisor, for sexual favors in order for the
complainant to keep or obtain certain job benefits, be it a wage increase, a
promotion, training opportunity, a transfer or the job itself.
(b)
Creating a
hostile environment
Any unwelcome
sexual advance, request for sexual favors or other verbal or physical conduct
of a sexual nature, which interferes with an individual’s work performance or
creates an intimidating, hostile, abusive or offensive work environment.
The typical
“hostile environment” claim, in general, requires finding of a pattern of
offensive conduct, however, in cases where the harassment is particularly
severe, such as in cases involving physical contact, a single offensive
incident will constitute a violation.
(c)
Retaliation
The refusal to
grant a sexual favor can result in retaliation, which may include limiting the
employee’s options for future promotions or training, distorting the evaluation
reports, generating gossip against the employee or other ways of limiting
access to his/her rights. Such behavior is also a part of the harassment.
(iii)
An informal approach to resolve a complaint of
harassment may be through mediation between the parties involved and by
providing advice and counseling on a strictly confidential basis;
(iv)
A complainant or
a staff member designated by the complainant for the purpose may
report an incident of harassment informally to her supervisor, or a member of
the Inquiry Committee, in which case the supervisor or the Committee member may
address the issue at her discretion in the spirit of this Code. The request may
be made orally or in writing;
(v)
If the case is taken up for investigation at an
informal level, a senior manager from the office or the head office will
conduct the investigation in a confidential manner. The alleged accused will be
approached with the intention of resolving the matter in a confidential manner;
(vi)
If the incident or the case reported does constitute
harassment of a higher degree and the officer or a member reviewing the case
feels that it needs to be pursued formally for a disciplinary action, with the
consent of the complainant, the case can be taken as a formal complaint;
(vii)
A complainant does not necessarily have to take a
complaint of harassment through the informal channel. She can launch a formal
complaint at any time;
(viii)
The complainant may make formal complaint through her
incharge, supervisor, CBA nominee or worker's representative, as the case may
be, or directly to any member of the Inquiry Committee. The Committee member
approached is obligated to initiate the process of investigation. The
supervisor shall facilitate the process and is obligated not to cover up or
obstruct the inquiry;
(ix)
Assistance in the inquiry procedure can be sought from
any member of the organization who should be contacted to assist in such a
case;
(x)
The employer shall do its best to temporarily make
adjustments so that the accused and the complainant do not have to interact for
official purposes during the investigation period. This would include
temporarily changing the office, in case both sit in one office, or taking away
any extra charge over and above their contract which may give one party
excessive powers over the other's job conditions. The employer can also decide
to send the accused on leave, or suspend the accused in accordance with the
applicable procedures for dealing with the cases of misconduct, if required;
(xi)
Retaliation from either party should be strictly
monitored. During the process of the investigation work, evaluation, daily
duties, reporting structure and any parallel inquiries initiated should be
strictly monitored to avoid any retaliation from either side;
(xii)
The harassment usually occurs between colleagues when
they are alone, therefore usually it is difficult to produce evidence. It is
strongly recommended that staff should report an offensive behavior immediately
to someone they trust, even if they do not wish to make a formal complaint at
the time. Although not reporting immediately shall not affect the merits of the
case; and
(xiii) The
Code lays down the minimum standards of behavior regarding protection of women
from harassment at workplace etc but will not affect any better arrangement
that an organization may have developed nor will it bar the grant of protection
that employees working in an institute may secure from their employers through
negotiation.
STATEMENT OF OBJECTS AND REASONS
The objective of
this Act is to create a safe working environment for women, which is free of
harassment, abuse and intimidation with a view toward fulfillment of their
right to work with dignity. It will also enable higher productivity and a
better quality of life at work. Harassment is one of the biggest hurdles faced
by working women preventing many who want to work to get themselves and their
families out of poverty. This Act will open the path for women to participate
more fully in the development of this country at all levels.
This Act builds on
the principles of equal opportunity for men and women and their right to earn a
livelihood without fear of discrimination as stipulated in the Constitution.
This Act complies with the Government’s commitment to high international labour
standards and empowerment of women. It also adheres to the Human Rights
Declaration, the United Nation’s Convention for Elimination
of all forms of
Discrimination
Against Women and ILO’s convention 100 and 111 on workers’ rights. It adheres
to the principles of Islam and all other religions in our country which assure
women’s dignity.
This Act requires
all public and private organizations to adopt an internal Code of Conduct and a
complain/appeals mechanism aimed at establishing a safe working environment,
free of intimidation and abuse, for all working women. It shall also establish an Ombudsman at
Federal and provincial levels.
MINISTER-IN-CHARGE
YOUSAF RAZA GILLANI
PRIME MINISTER
ISLAMIC REPUBLIC OF
PAKISTAN
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