[11th March 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.
(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 [3][Punjab
Industrial Relations Act 2010 (XIX of 2010)], 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 [4][Ombudsperson]
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,
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;
[5][(iii) the
authority, in relation to an organization or group of organizations run by or
under the authority of the Government, the Federal Government or any other
Provincial Government, appointed in this behalf or, where no such authority is
appointed, the head of the organization or group of organizations;]
(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
(vii) office bearers
of [6][* * *]
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 subsection (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;
(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) 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 [10][Ombudsperson]
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 [11][Ombudsperson]
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 [12][Ombudsperson].
(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.
[15][7. Ombudsperson.– The Government shall appoint the Ombudsperson on
such terms and conditions as may be prescribed.
(2) A person shall
be qualified to be appointed as the Ombudsperson who is not less than forty
five years of age and–
(a) has been
or is qualified to be a Judge of a High Court; or
(b) has been
in the service of Pakistan in BS-20 or above; or
(c) is an
eminent educationist with not less than four years administrative experience.
(3) The
Ombudsperson shall not–
(a) hold any
other office of profit in the service of Pakistan; or
(b) occupy any
other position carrying the right to remuneration for the rendering of
services.
(4) The
Ombudsperson may appoint such staff as may be required to achieve the purposes
of this Act.]
8. [16][Ombudsperson]
to enquire into complaint.– (1) Any employee shall have the
option to prefer a complaint either to the [17][Ombudsperson]
or the Inquiry Committee.
(2) The [18][Ombudsperson]
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 [19][Ombudsperson]
within five days and his failure to do so without reasonable cause the [20][Ombudsperson]
may proceed ex-parte. Both the parties can represent
themselves before the [21][Ombudsperson].
(3) The [22][Ombudsperson]
shall conduct an inquiry into the matter according to the rules made under this
Act and conduct proceedings as the [23][Ombudsperson]
deems proper.
(4) For the
purposes of an investigation under this Act, the [24][Ombudsperson]
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 [25][Ombudsperson]
is relevant and helpful in the conduct of the investigation.
(5) The [26][Ombudsperson]
shall record his decision and inform both parties and the management of the
concerned organization for implementation of the orders.
[27][9. Representation
to Governor.– Any person aggrieved by a decision of the Ombudsperson under
subsection (5) of section 8 may, within thirty days of the communication of the
decision, make a representation to the Governor whose decision shall be final.]
10. Powers of the [28][Ombudsperson].– The [29][Ombudsperson]
shall for the purpose of this Act have the same powers as are vested in a Civil
Court under the Code of Civil Procedure, 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 [30][Ombudsperson]
has a reason to believe that any information relevant to the case may be found;
and
(vi) The [31][Ombudsperson]
shall have the same powers as the High Court has to punish any person for its
contempt.
(2) [32][Ombudsperson]
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 [33][complaint
before the Ombudsperson] 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.
[34][(4) A
person aggrieved by an order under subsection (3) may, within thirty days of
the communication of the order, make a representation to the Governor whose
decision shall be final.]
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 [35][* *
*] 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.
[1]This
Act of Parliament received the assent of the President on 9th March
2010 and published in the Gazette of Pakistan (Extraordinary), Pt. I, dated 11th March
2010, pages 63-74.
This Act was originally in the Federal
ambit, however, the subject on which this law was enacted devolved to the
provinces by virtue of 18th Amendment in the Constitution,
hence it was adapted, with amendments, for the province of the Punjab by the Punjab Protection Against Harassment of
Women at the Workplace (Amendment) Act 2012 (III of 2013).
[2]Substituted
by the Punjab Protection Against Harassment of Women at the Workplace
(Amendment) Act, 2012 (III of 2013).
[5]Substituted
by the Punjab Protection Against Harassment of Women at the Workplace
(Amendment) Act, 2012 (III of 2013).
[8]Substituted
for the word “Ombudsman” by the Punjab Protection Against Harassment
of Women at the Workplace (Amendment) Act, 2012 (III of 2013).
[10]Substituted
for the word “Ombudsman” by the Punjab Protection Against Harassment
of Women at the Workplace (Amendment) Act, 2012 (III of 2013).
[16]Substituted
for the word “Ombudsman” by the Punjab Protection Against Harassment
of Women at the Workplace (Amendment) Act, 2012 (III of 2013).
[17]Ibid.
[18]Ibid.
[19]Ibid.
[20]Ibid.
[21]Ibid.
[22]Ibid.
[23]Ibid.
[24]Ibid.
[27]Substituted
by the Punjab Protection Against Harassment of Women at the Workplace
(Amendment) Act, 2012 (III of 2013).
[33]Substituted
for the words “petition before the District Court” by the Punjab Protection
Against Harassment of Women at the Workplace (Amendment) Act, 2012 (Act III of
2013).
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