Comments on newly promulgated Industrial Relations Act 2008 - I

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Comments on newly promulgated Industrial Relations Act 2008 - I ​

Mahmood Abdel Ghani

ARTICLE (May 09 2008): Industrial Relations Ordinance 2002 was promulgated as a result of the labour policy of 2002. Earlier four labour policies were announced in 1955, 1959, 1969 and 1972. Unfortunately, the Industrial Relations Ordinance 2002 was promulgated by the previous Government only at the behest of Employers' Federation of Pakistan and WEBCOP.

Neither the constitution of the country nor the primary interest of employers and workers, for the smooth working of the labour laws, was taken into consideration. No wonder both the labour and the management have started demanding that the Industrial Relations Ordinance 2002 be repealed. The Prime Minister has now assured the National Assembly that IRO 2002 will be repealed.

THE FOLLOWING SUGGESTIONS, BEFORE INTRODUCING NEW LABOUR LEGISLATION, ARE MADE IN THIS BEHALF: IRO 1969 and certain provisions of IRO 2002 both be taken into consideration and Industrial Relations Act 2008 be introduced in the Assembly.

Keeping in view Article 17 of the Constitution of Pakistan 1973, which guarantees freedom of association, it should be provided that the provision of Industrial Relations Act 2008 be applicable to all the industrial and commercial establishments, except those employed in the Police or in the defence services of Pakistan and in installations or services exclusively connected with the Armed Forces.

As also, the Ministry of Defence, lines of the Railways and those engaged in the administration of the state, other than those employed as workmen by the railway and Post.

THE TEXT OF THE ACT BE AS UNDER:

-- Short Title, Extent, Commencement and Application

-- This Act shall be called Industrial Relations Act 2008

-- It extends to the whole of Pakistan

-- It shall come into force at once

-- It shall apply to all persons employed in any establishment or part thereof or industry, except those employed:

-- In the Police or in the Defence Services of Pakistan

-- In any installation or services exclusively connected with the Armed Forces of Pakistan, including Ministry of Defence, Lines of the Railways;

-- In the administration of state other than those employed as workmen by the Railway and Post.

2. DEFINITIONS: In the definition of the term 'award' in section 2 (ii), the word 'award' means determination by the Labour Court, Arbitrator or the appellate court of competent jurisdiction of any industrial dispute or any matter relating thereto and includes an interim award.

Needless to mention, if there is an industry wise trade union registered with the National Industrial Relations Commission ("NIRC"), that union or the employer, can also raise industrial dispute but only before the Commission, and an 'Award' on such an industrial dispute can also be given by the National Industrial Relations Commission.

Therefore, after word, "Labour Court" in the definition of the term 'award' in section 2 (ii) words 'Commission' be incorporated, or else the definition as it stands at present will be redundant to the extent of the award given by the National Industrial Relations Commission.

In the original Industrial Relations Ordinance, 1969 in the definition of the word, 'worker and workmen' person employed in the supervisory capacity were excluded. In the present definition of 'employer' in section 2(x) in IRO 2002 in the private sector, a person performing supervisory nature of work also is not an 'employer', meaning he is a workman in terms of section 2(xxx), IRO 2002.

However, in section 2(x) (g) of the Industrial Relations Ordinance, 2002 which defines 'employer', an office bearer of a department or Division of the Federal or a Provincial or local authority, who belongs to "categories of supervisors or agents" have been included in the term "employer".

There is thus, prima facie violation of Article 25 of the Constitution of the Islamic Republic of Pakistan which provides that all citizens are equal before the law and are entitled to equal protection of law. An employee performing supervisory nature of work, whether in the public sector or private sector or in any department or division of the Federal, Provincial or local authority, should either be identified as 'employer' or as "workmen".

Differentiating supervisors in the private/public sector or the government sector is a violation of the Constitution which requires rectification. In the definition of the term 'employer' as defined in section 2(x)(b) in IRO 2002 any person responsible for the direction, administration, management and control of the establishment has been included in the definition.

Word 'establishment' has been defined in section 2(xi) to mean all departments and branches whether situated in same place or in different place having common balance sheet and profit and loss accounts. Thus only that person as is responsible for the direction, administration, management and control of all the departments and branches is liable to be covered under the definition of the term 'employer'.

If there is one branch for example a bank employing 300 employees and there is a Branch Manager, although he is responsible for the direction, administration, management and control of that branch, he will not be included in the definition of the term 'employer' by virtue of the present section 2(x) (b). It is suggested that in section 2(x)(b), IRO 2002 after phrase 'control of establishment' words 'or any part thereof' be incorporated. Needless to mention that an establishment should not be identified with a company.

THE TEXT OF THE TERM 'EMPLOYER' IN SECTION 2(X), IRO 2002 OR THE NEWLY PROMULGATED ACT SHOULD READ AS UNDER: "Employer in relation to an establishment or part thereof, means any person or body of persons whether incorporated or not, who or which employs workman in an establishment or part thereof under a contract of employment and includes:

(a) any heirs, successor or assign, as the case may be, of such person or, body as aforesaid;

(b) any person responsible for the direction, administration, management, supervision and control of the establishment or any part thereof;

(c) the authority, in relation to an establishment or part thereof, run by or under the authority of any department of the Federal Government or a Provincial Government, appointed in this behalf or, where no authority is appointed, the head of department;

(d) the office-bearer, in relation to an establishment, or part thereof, run by or on behalf of a local authority, appointed in this behalf, or where no officer is so appointed, the Chief Executive Office bearer of that authority;

(e) The proprietor, in relation to any other establishment, or part thereof, and every director, manager, secretary, agent, holder of general or special power of attorney or person whose main and primary duty is/are of direction, management, supervision, control or administration or any person concerned with the management of the affairs thereof;

(f) a contractor or an establishment or part thereof of a contractor who enters into contract for execution of job, work or any assignment of any nature whatsoever and for payment in any form and on any basis whatsoever;

(g) office-bearer of a department or Division of the Federal or Provincial or local authority who belongs to the management secretarial, or directional cadre or categories of supervisors or agents and those who have been notified for this purpose in the official gazette.

4. In the definition of Section 2(iii) of the term 'Collective Bargaining Unit', "class of workers of an employer in one or more establishments coming within the same class of industry" has been included along with workers. This leads to the inference that the legislature is contemplating a 'craft' union-like union, exclusive of typists, carpenters, welders, turners etc. This concept of craft unions has not been recognised by the Supreme Court of Pakistan. The text of the definition of the term 'Collective Bargaining Unit' should read as under:

"Collective Bargaining Unit means those workers employed in an establishment, or part thereof, in more than one province whose terms and conditions of employment are, or could, appropriately be the subject of collective bargaining".

5. In the definition of the term 'establishment' in section 2(xi), IRO 2002, any office, firm, factory, society, undertaking, company, shop, premises or enterprise, employing workmen for the purpose of carrying on any business or industry, including department and branches situated in different places but having a common balance sheet and profit and loss accounts, are all to be identified as one establishment. It is nowhere clear as to whether the different departments and branches situated in different places should be in the same province or in more than one province. If various departments and branches are to be treated as one establishment in more than one province, then the necessary corollary would be:

(a) Unions can only be formed and registered as an Industry wise Trade Union by the National Industrial Relations Commission and no local or provincial union can be formed.

(b) All branches and departments of that establishment will have to be determined as one CBU or more than one CBU by NIRC.

(c) If the concept of establishment, as regards the branches and departments extends to more than one province and unions are to be registered as an Industry wise Trade Union, by the National Industrial Relations Commission, a necessary further consequence will be that the locally registered trade union, ipso facto, shall be deemed to have ceased to exist and its registration liable to be cancelled.

Appropriate amendment in this behalf is essential to avoid confusion. The suggested text of the term 'establishment' be as under: "establishment means any office, firm, factory, society, undertaking, shop, premises or enterprise or part thereof, which employs workman directly, or through a supplier of labour or service, other than an independent contractor, who enters into contract with the employer for execution of contract, for the purpose of carrying on any business or industry for the purpose of material gain or service"

6. The definition of the phrase 'group of establishments' under section 2(xiii) of the Industrial Relations Ordinance, 2002 means an establishment belonging to the same employer and the same industry. There can be a situation where the same employer may have same industry and nature of business, but under a separate legal entity with separate balance sheets and profit and loss accounts for example Textile, Sugar or Cement industries.

They will be separate legal entities and therefore, cannot be clubbed together in the broad concept of "group of establishments" for if this is so then there will be only one CBA in the establishment or "group of establishment". There can possibly also be a situation where two separate legal entities, like two separate companies, belong to the same employer, one making profit, whereas the other entity incur loss, although both fall within the category of 'group of establishment'.

With one CBA in such "group of establishment", difficulty will arise as regards financial benefits other than statutory, and or award to be given by the courts or NIRC. In any case, the concept of group of establishment becomes redundant with the expanded meaning of the term 'establishment' as discussed herein above and this definition be deleted altogether to avoid further confusion.

7. The definition of the term "Industrial Dispute" in section 2(xvi) of the Industrial Relations Ordinance, 2002 appears to be more or less same as in section 2(viii) of the repealed Industrial Relations Ordinance, 1969 except to the extent that the dispute between the employer and employer has been excluded.

There cannot possibly be any industrial dispute between the employer and workman for a workman, in itself has no legal right to raise an industrial dispute. Both under section 43 of the repealed Industrial Relations Ordinance, 1969 and in section 35 of the Industrial Relations Ordinance, 2002 it is provided that no industrial dispute shall be deemed to exist unless it has been raised by the CBA or the employer in the prescribed manner.

Industrial Dispute only can be between "Employer and CBA" and not between employer and the workmen. Even the dispute between workman and workman in this context is redundant and has to be excluded much in the same way as dispute or difference between the employer and employer has been excluded.

The definition of the term Industrial Dispute be not just reproduced but drafted in keeping with the essence, spirit and purpose of law and as to the identities of those who constitute ingredients of industrial dispute. The suggested text of the definition of the term 'Industrial Dispute' is as under:

"'Industrial Dispute' means any dispute or difference between employer and the Collective Bargaining Agent, which is connected with the employment, non-employment or the terms of employment or the conditions of work; and is not in respect of and otherwise justiciable in respect of the enforcement of any right guaranteed or secured to workers or the collective bargaining agent or employer by or under any law, award or settlement for the time being in force."

8. In the definition of the term 'industry' in section 2(xvii) of the Industrial Relations Ordinance, 2002 phrase 'any business, trade, manufacture, calling, services, occupation or employment' as it originally existed in section 2(xiv) of the repealed Industrial Relations Ordinance, 1969 has been retained.

However, these words should be qualified by the phrase 'engaged in an organised economic activity of producing goods or services for sale, excluding those set up exclusively for charitable purposes, operating through public or private donations where "charitable purpose" includes provision of education, medical care, emergency relief and other needs of the poor and indigent".

9. Needless to mention that every human activity, in which enters the relationship of employer and employee, is not necessarily creative of industry. Industrial Dispute occur when the operation undertaken rests upon cooperation between employers and workmen with a view to production and distribution of material goods or service. In other words, wealth may arise in case there is cooperation to produce material services.

Normal cases are those in which the production or distribution is of material goods or wealth and they alone should fall within the expression 'trade, business, manufacture, calling or service'. Before the work engaged can be described as an "industry" it must bear a definite character of trade or business or manufacture or service or calling or must be capable of being described as an undertaking in material goods or material services.

Where the activity is to be considered as an industry, it must not be casual but must be distinctly systematic. The work for which labour of workmen is required must be productive and the workmen must be following an employment, calling or industrial avocation.

The suggested text of the definition of the term 'industry' should thus be as under: "Industry means any business, trade, manufacture, calling, service, employment or occupation engaged in an organised manner, activity of producing material goods or material service".

10. The definition of the word 'strike' has been given in section 2(xxviii), IRO 2002 to mean cessation of work by a body of a person who refuse to continue to work or to accept employment. Unfortunately, this definition of the term 'strike' overlooks a situation where workers report for duty but only perform 5% of the normal work.

They can insist that there is no cessation of work, although for all intents and purposes contributing mere 5% of the normal work is as good as a strike. It is therefore, suggested that strike and cessation of work should be correlated with not only absolute cessation of work but even partial cessation of work.

Body of persons employed in any establishment act in combination and if by way of concerted manner refusal to work under common understanding or to perform work which is not normal be also considered as 'strike' on the principle of 'no work no wages' or else the entire purpose of the Industrial Relations Ordinance, 2002 will be defeated. Duration of the period of strike is not sine quo non to constitute strike (1972 PLC 190).

The suggested text of the definition of the term 'strike' should be: "strike means cessation of work, absolute or partial, by a body of persons employed in any establishment or part thereof, acting in combination, either wholly or partially, or a concerted refusal wholly or partially under a common understanding of any number of persons, for any duration of time, who have been or employed to continue to work or to accept employment."

11. The word 'settlement' in section 2(xxvi) of IRO 2002 means a settlement in the course of conciliation proceedings and includes an agreement between an employer, CBA or 'workman'. There is no provision in law conferring power on 'workman' to raise a dispute or conclude a agreement. The words "or workman' are superfluous and be deleted.

They are liable to be misused and or abused to the disadvantage of industrial peace, harmony and will lead to labour-management confrontation, which should be avoided at all cost. The suggested text of the definition of the term 'settlement' should be as under:

"Settlement' means a settlement arrived at, in the course of conciliation proceedings, and includes an agreement between an employer and the Collective Bargaining Agent, arrived at otherwise than in the course of such proceedings, where the agreement is in writing and has been signed by the parties, thereto in such manner as may be prescribed and a copy thereof has been sent to the Government, the Conciliator and such other persons as may be prescribed".

12. The word "worker and workman" in section 2(xxx) of IRO 2002 means any and all persons not falling within the definition of employer who is employed in an establishment or industry, but does not include any person employed mainly in the managerial or administrative capacity.

This definition is not in consonance with the definition of the term 'employer' under section 2(x) of the Industrial Relations Ordinance, 2002 wherein any person responsible for direction, administration, management and control of establishment, has been included in the definition of the word employer, whereas only persons employed in the managerial or administrative capacity has been excluded from the definition of the term worker.

Persons engaged and responsible for direction and control is 'employer' under section 2(x) of IRO 2002, yet he is workman or worker within the meaning and contemplation of the term as defined in section 2(xxx) of the Industrial Relations Ordinance, 2002.

This anomalous position requires to be rectified. Persons engaged in the direction, administration, management, supervision and control of establishment or any part thereof, should be excluded from the purview of the term 'workman' in section 2(xxx) of IRO 2002 so as to bring it in consonance with the definition of the term 'employer' as defined in section 2(x) of IRO 2002 as also the term establishment. The suggested text of the definition of the term worker or workman, should be as under:

"'Worker' and 'workman' means any person employed in an establishment or part thereof or industry to do skilled or unskilled, manual or technical work as his main and primary duty, for remuneration or reward, either directly or through a contractor, other than a person employed by the contractor, whether the terms of employment be express or implied, and for the purpose of this Act, includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment but does not include any person who is employed mainly in managerial, administrative, directional or supervisory capacity".

The word 'trade union' has been defined in section 2(xxiv) not in keeping with the concept, essence and spirit of IRO 2002. It means any combination of workers to further and defend the interest and rights of workers in any industry or establishment and includes industry wise federation of two or more Collective Bargaining Agents and a federation at the national level, of ten or more Collective Bargaining Agents.

The word trade union should be in harmony with the term 'establishment' and 'industry'. It is not clear if federation can be formed in establishment or industry of the same employer within a province. In the case reported in 1975 PLC 371, the Sindh High Court held that employees of several separate and distinct establishments doing same business can join together and form a single trade union and can also be certified as Collective Bargaining Agent of workmen employed in similar undertakings although such undertakings may be owned by different employers.

Likewise, in 1994 PLC 85 the Division Bench of Karachi High Court has held that a trade union representing workers of a group of establishment could be registered, even if establishments in the group were owned by or belonged to different employers as the concept of 'group of establishment' was an expression of wide connotation and included independent establishments.

This decision was subsequently maintained by the Supreme Court of Pakistan in Civil Appeal No 324 to 328 of 1993, decided on 27.6.1996 wherein their Lordships have observed that the word 'any' preceding the expressions combination of workman enlarged its contents.

The Supreme Court has also observed that it seems not appropriate to place restrictions on the formation of trade unions merely for the reasons that its executives should possibly use its position to benefit one establishment at the cost of another. So viewed, the definition of the term 'trade union' in section 2(xxviii) should be as under:

"'Trade Union' means any combination of workers formed primarily for the purpose of furthering and defending the interest and rights of workman in any industry or establishment or part thereof and includes an industry wise trade union as also an industry wise federation of two or more such trade unions".

Association of employer has been defined in section 2(iii) and reference also made in section 3(1)(b), IRO 2002 yet, unlike provisions for registration of trade union of workers, there is no provision in law for the registration of association of employer. It is not clear if the omission is willful or unintentional.

13. Finally in the definition clause, perhaps through oversight, the word 'go-slow' has not been defined, although go-slow has been listed as one of the act of unfair labour practice on the part of workmen, in terms of section 64 (1)(f) of IRO 2002. Go-slow is not like ordinary strike, which has been recognised either by ILO or in the labour laws as a lawful weapon.

Go-slow in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 means an organised, deliberate and purposeful slowing down of normal work by a body of workers in a concerted manner and which is not due to any mechanical defect, break-down of machinery, failure or defect in power supply or in the supply of normal materials and spare parts of the machinery.

Go-slow is picturesque description deliberately delaying production by the workers pretending to be working in the establishment. It is one of the most pernicious practice that discontented and disgruntled workmen resort to. It would not be far wrong to call it 'dishonest' for while thus delaying the production and thereby reducing output the workmen claim to remain employed and thus entitled to full wages.

Go-slow is likely to be much more harmful than the total cessation of work. In a strike, the machinery is fully turned off but during go-slow, machinery is kept going at reduced speed, which is often extremely damaging to machinery parts, thus it is a serious type of misconduct. Go-slow is not a legitimate weapon in the armoury of the workman. It is an insidious method of undermining the stability of a concern.

(To be continued)

Business Recorder [Pakistan's First Financial Daily]

 

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Suggestions for recently proposed Industrial Relations Act - II ​

ARTICLE (May 10 2008): The first part of this article, published in the issue of 9 May (Friday), carried a wrong headline. The mistake is regretted. The correct headline is used today for the second part. In section 7 of IRO 2002 a person convicted of heinous nature of offence like theft, physical assault, murder, attempt to murder stands disqualified for being an office bearer of a trade union.

The words 'moral turpitude or convicted by labour Court, Commission, High Court' be added after the words 'murder'. This will ensure that those office-bearers indulging in acts of violation of labour laws are not eligible to hold office in the union.

The proposed text of section 7 should read as under:

"Disqualification for being an office-bearer of a trade union. - Notwithstanding anything contained in the Constitution of a trade union, any person who has been convicted of an offence under section 70 or of a criminal offence of a heinous nature, within the meaning of the Pakistan Penal Code (Act XLV of 1860) such as theft, physical assault, murder, attempt to murder, moral turpitude or convicted and or disqualified by Labour Court, Commission or High Court etc, shall neither be elected as, or from being a member, office-bearer, advisor, consultant of a trade union".

15. In section 8(a) of IRO 2002 the register of members of a trade union is required to show particulars of subscription paid by each member. The words 'contribution or donations' be added after the word 'subscription', as at present certain unaccounted for contributions are also obtained from the members which are subsequently spent to the detriment of cordial labour- management relations.

CLAUSE 8(A) AS AMENDED SHOULD READ AS UNDER:

"A register of members showing particulars of subscription, contribution or donation paid by each member union or otherwise".

16. In repealed section 9 of the Industrial Relations Ordinance, 1969 certificate of registration was in the prescribed form but in section 11 of the Ordinance, 2002 the prescribed form has been omitted. Prescribed form brings about uniformity and giving of common information, not leaving the status in doubt and reflects that all conditions precedent to issuance of certificate were complied.

17. In section 10 of the repealed Ordinance, and section 12 of the present Ordinance only the Registrar of Trade Unions has been empowered to lodge a complaint in writing for the cancellation of the registration of the union before the Labour Court. The Registrar of Trade Union must exercise his powers fairly, reasonably, honestly and in an equitable manner. Unfettered and arbitrary power, without laying down guidelines, are ultra vires to the law.

It is the objective and not subjective satisfaction of the Registrar that is pre-requisite. In fact, even for subjective satisfaction, the existence of objective realities is sine quo non. Any provision that is arbitrary, unguided, uncannalized and vested with discretionary powers is void and unconstitutional. It is also against public policy. Section 12 of the Ordinance, 2002 thus needs to be suitably rephrased on the touchstone of the criteria formulated above, which are based on pronouncements of the superior judiciary.

18. In section 12(1) of the IRO 2002, the registration of a trade union, as discussed, shall be cancelled if the Labour Court so directs, on a complaint in writing made by the Registrar. Not only is this power arbitrary, uncannalized, but even the law is silent as to who shall be the party before the Labour Court, the duration within which the Labour Court will decide the matter, the procedure to be followed by the Labour Court in disposing off the complaint.

Once a complaint is lodged, it should not be within the arbitrary discretion of the Registrar of Trade Unions to withdraw the complaint, unless for cogent reasons, which can stand the test of judicial scrutiny. The employer in whose establishment, the union is formed, should necessarily be made co complainant or at least one of the respondents so that the facts as to the violation, within the exclusive knowledge of employer is brought on record, by the employer, before the Labour Court. The legitimate expectancy of the employer to be co complainant to the Registrar of Trade Unions be examined to give effect to the essence and spirit of law. Thus transparency of the action of the Registrar of Trade Union will be established.

THE SUGGESTED TEXT OF SECTION 12 OF IRO 2002 SHOULD THUS READ AS UNDER:-

"CANCELLATION OF REGISTRATION:

(1) The registration of a trade union shall be cancelled if the Labour Court or Commission so directs upon a complaint in writing made by the Registrar, or any person authorised by him or the employer, that the trade union has;

(i) contravened or has been registered in contravention of, any of the provision of this Ordinance or the rules made there under;

(ii) contravened any of the provisions of its constitution;

(iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules made there under;

(2) Where any person who is disqualified under section 7 from being elected as, or from being an office bearer of a trade union, is elected as an office bearer of a registered trade union, the registration of that union shall be cancelled if the Labour Court or Commission, upon a complaint in writing made in this respect by the Registrar, or by any person so authorized by him or the employer so directs;

(3) The registration of a trade union shall be cancelled by the Registrar, by giving reasons for such cancellation in writing, if, after holding an inquiry he finds that any trade union:-

i) has dissolved itself or has ceased to exist, or ;

ii) has not been a contestant in a referendum for the determination of a Collective Bargaining Agent or otherwise concedes a contest; or

iii) has not applied for determination of Collective Bargaining Agent under section 20(2) within two months of its registration as another union or promulgation of this Ordinance, whichever is earlier, provided, there does not already exist a collective bargaining agent determined under section 20(11) in an establishment, or part thereof or industry, or

iv) has served less than 15% of polled votes per final list of voters during a referendum for the determination of Collective Bargaining Agent, or

v) does not submit annual returns under section 19 within three months of the close of the accounting year; or

vi) does not hold annual elections within fifteen days of the expiry of the term of office of the office bearer last elected, or

vii) does not truly and accurately reflect in its accounts apart from union subscription, the collections and or donations received with details whereof of the expenditures.

19. In Section 13 of the Ordinance, 2002 only a trade union aggrieved by a decision given by the Labour Court has been conferred the right of appeal to the High Court. The decision of the Labour Court could well be not to order for the cancellation of registration of the union in which case, the employer or the Registrar of Trade Unions may well be an aggrieved party. Since the Industrial Relations Ordinance, 2002 aims at a striking harmonious balance between the trade union and employees and both are treated at par in matters pertaining to the formation of trade union and or association, right to strike or lockout, right to appeal against decision of labour court under section 33 of the Ordinance, 2002, and before the High Court in terms of section 48 of the said Ordinance, both justice and equity demands that employer too be conferred the right to appeal, in terms of section 13 to the Labour Appellate Tribunal, if aggrieved against the decision of the Labour Court refusing cancellation of registration of a trade union. Section 13 of the Ordinance, be suitably amended to the following effect:-

"Appeal against decision pertaining to cancellation of registration:

Any trade union, Registrar of Trade Unions or employer aggrieved by a decision given:-

a) by the Labour Court under subsection (1) or (2) of Section 12 may appeal to the Labour Appellate Tribunal

b) by the Registrar of Trade Union subsection (3) of section 12 may appeal to the Labour Appellate Tribunal".

The text of section 18 of IRO 2002 should thus read as under:-

"Registration of Federation of Trade Union (1) Any two or more registered trade unions belonging to an industry, in more than one province, may constitute an industry wise federation. Any ten or more registered trade unions (at least one from two or more province) may constitute a federation or confederation at the national level. In both cases, the respective general bodies of a trade unions, if they so resolve, shall constitute a federation or confederation of trade unions by executing an instrument of federation or confederation and apply for registration of such federation or confederation.

Provided that a trade union of workman shall also not join a Federations which comprises of an association of employers, nor shall an association of employers join a federation which comprises of a trade union.

(1) No trade union, federation or confederation shall be formed and registered having same, similar or identical names;

(2) An instrument of federation referred to in subsection (1) shall among other things, provide for the procedure to be followed by the federated trade union or association and the rights and responsibilities of the federation and the federated trade union or associations;

(3) An application for the registration of a federation of trade union or association shall be signed by the President and General Secretary in actual employment of all the trade unions or all associations constituting the federation or by the office bearers of these trade unions or associations, respectively, authorized by the trade unions or association in this behalf and shall be accompanied by three copies of the Instrument of Federation referred to in subsection (1).

(4) Subject to subsection (1),(2), (3) and (4), provisions of this Ordinance shall, so far as may be and with necessary modifications, apply to a federation of trade union or association as may apply to a trade union or association".

20. Section 19 of the Ordinance, 2002 provides for annual returns to be sent by the registered trade unions, federations or confederations of trade unions during the year ending 31st December. However, no consequence as to non-submission of these returns has been provided for in law. This makes a mockery of the law as regards submission of annual returns.

21. Section 20(1) the words 'group of establishments' at the end of the section be followed by the word 'or industry' to be in harmony with the earlier provisions of section 20(1) of the Ordinance, 2002.

22. Section 20(2) - the second proviso dealing with the determination of Collective Bargaining Agent provides that the Registrar of Trade Unions shall not entertain any application for the determination of CBA, including that in a seasonal factory, unless such application is made during the month in which the number of workman employed in a year is usually the maximum. This provision of law ignores the fact that in the sugar industry it lasts for about three months in a year, the industry employs the maximum number of workers and the factory runs round the clock. Holding of secret ballot or determination of CBA during this limited period of crushing and or manufacture of sugar is bound to effect the operation of the industry invariably, as during the period of such determination of CBA, 'election activities' on the pattern of local elections, if not provincial elections, invariably follow which tend to effect the smooth functioning of the industry. The sugar industry, in particular, is sensitive, being dependent on the availability of sugarcane, and the reluctance on the part of the growers to provide sugar cane at 'Bench Price' or price fixed by government etc. An alternative to avoidance of disruption of the 'season' be evolved for the sugar industry and, or any other seasonal industry so as to ensure no disruption of work in the season and suitable amendment to this effect be made.

23. Furthermore, section 20(7) of IRO 2002 provides that every employer shall provide 'all such facilities in his establishment as may be required by the Registrar for the conduct of the poll, but shall not interfere with or in any way, influence the voting. The phrase providing of 'facilities' needs both elucidation and re-examination. In institutions like PIA, KESC, WAPDA; GlaxoWellcome Pakistan, Sui Southern and Sui Northern Gas Co, PSO, Pakistan Telecommunication etc polls, conducted under the umbrella of NIRC, such 'facilities' include unlimited issuance, on demand, of free air tickets, boarding and lodging in Three or Four Star hotels, free use of company vehicles, unlimited NWD telephones etc, all of which are invariably "expected" and made to be given by the employer.

This invariably breeds unhealthy attempts to delay or frustrate polls by vested interests. If the employer is not expected to interfere with, or in any way influence the voting, all arrangement for such polls be met by the unions contesting the polls from their own resources. Providing 'facilities', which is essentially an internal union matter of determination of the CBA, may lead to allegations of favouritism, unfair labour practice etc on the part of the employer. To ensure unions in our country work independent and become financially self reliant, they should have the means to muster finance once, every three years. The law be suitably amended to ensure this unintentional lapse, as regards 'facilities' be excluded.

24. By virtue of section 20(11) of IRO 2002, the period of the term of a CBA, certified after secret ballot, has been increased from two to three years. If the term of the settlement or award of the Courts or Commission are for two years, there is no earthly reason to increase the term of CBA from two to three years. Industrial democracy should prevail.

25 In section 20(13)(c) of IRO 2002, law confers certain entitlements to CBA. One such right is to give notice of strike. As against this, in section 25(3), 27 and 28 of IRO 2002, the words now used are notice of conciliation. It appears that while amending section 26(3) IRO 1969 and with incorporation of section 25(3), 27 and 28 in the new Ordinance, the concept of notice of strike has been retained and has not been replaced by the concept of "notice of conciliation", through oversight. Section 20(13)(c) of IRO 2002 requires the words notice of strike to be replaced by the words 'notice of conciliation'.

26. Section 20(15), IRO 2002 provides that once an application is made to the Registrar to determine a CBA, no employer shall transfer, remove, retrench or terminate any worker who is office bearer of any contestant trade union, save with the permission of the Registrar. In other words, in order to seek protection under section 20(15), IRO 2002, the office bearer may prolong proceedings and reap the benefit of and abuse the process of law.

The employer had grievance against the arbitrary, uncannalized and whimsical powers of other institutions who used to grant stay in routine. Instead now the Registrar, a non-judicial functionary has been vested with the power to accord or otherwise permission for punishment, retrenchment, discharge or transfer. Both the Conciliation Officers and Registrar are not judicial functionaries. They cannot adjudicate as held by the Supreme Court in 1964 PLC 629. This being so section 20(15), IRO 2002 is a highly provocative innovation aimed at encouraging corruption on the part of the Registrar Trade Union, thus breeding labour unrest. No sooner is it deleted, the better for the cause of peace and harmony.

27. Section 21, IRO 2002 recognises the concept of 'check off' which means union monthly subscription in accordance with the constitution of the union to be deducted, at the source, by the employer from the workmen salary each month and to be deposited in any scheduled bank, in the account of the union. Any other deduction will be a violation of Payment of Wages Act, 1936. Unfortunately, some elements amongst union tend to collect 'fund' un-authorizedly from the workers not provided for in the law, constitution of the union etc, under the garb of collection of payments for lawyers or representative fees, miscellaneous court expenses etc.

These collections are not accounted for in the books of accounts of the union, nor are subject to annual audit. This breeds inter worker rivalry, unethical tendencies, each vying for his share in these unaccounted for collections and tendency for frivolous litigation. Unfortunately, the law does not cater to these unhealthy, unethical practices. Adequate safeguards against exploitation of workers by their leaders be provided in section 21. A proviso be incorporated after clause (4) of subsection (1) to section 21 to the following effect:-

"Provided that the Collective Bargaining Agent, any registered trade union or any individual employee or workman shall not demand, or collect any individual contribution from the workman not otherwise provided for under law.

Provided further, that all voluntary contributions made to the CBA be accounted for in the accounts of the union subject to annual audit as provided for in law."

28. Section 22 of IRO 2002, it appears is reproduction of section 52 of the repealed IRO 1969. Apparently framers and, or draftsman, overlooked the fact that the concept of "recognition" of a trade union was an outdated concept of the repealed Trade Unions Act, 1926, the repealed Industrial Disputes Act, 1947; and the repealed West Pakistan Industrial Disputes Ordinance, 1968. Recognition of a trade union was effected under section 28C of Trade Unions Act, 1926, by signing a memorandum of agreement by the employer and the officers of the Trade Unions or their authorised representatives. Recognition was deemed necessary only to entitle the trade union to the powers and privileges under section 28-F of the Trade Union Act, 1926, which section entitled the recognised trade union to negotiate with the employer in respect of matters connected with the employment or non employment, or the terms of employment, or the conditions of labour of all or any of its members.

Since the recognition of a union was not a fundamental right or common law right the concept of recognition was introduced in Section 28C of the Trade Union Act, 1926. Now this concept too has been replaced by the concept of determination of collective bargaining agent by Registrar of Trade Unions or RITU. Earlier determination of Collective Bargaining Agent was non-existent, and employers used to 'recognise' the union according to his choice. This choice is now no more available in the Industrial Relations Ordinance, 1969, as this concept was replaced by the Industrial Relations (Amendment) Ordinance, 1970 by provisions of determination of the CBA.

Legislature pending determination of CBA by the Registrar of Trade Unions in 1970 did not want a vacuum to be created, hence as an 'interim' or 'a stop gap measure,' provisions of section 52 were incorporated in IRO 1969. Between 1970 onwards, upto 2002, more than thirty years have lapsed and the concept of determination of CBA have taken root and the concept of 'recognised' union, for all intents and purposes, has ceased to exist. Section 22 of IRO 2002 as such is now an outdated concept and needs to be deleted altogether from IRO 2002 and or any other law to be framed hereinafter.

29. In section 24(1) of IRO 2002, Joint Works Council shall consist of ten members, with forty percent representation of workers and sixty percent representation of employers. Earlier, Section 24 of the repealed IRO 1969 provided for equal representation on the Works Council. This arbitrary and despotic change of equal representation is hard to appreciate. It will breed labour unrest and a feeling of deprivation on the part of workers, which should be avoided at all costs in the democratic set-up. Representation on the Works Council shall be equal so also the Convenor of the Council should be through rotation between CBA and the management. After all bilateralism and equal parity is the essence of the Labour Policy 2002.

30. Section 29 of IRO 2002 deals with proceedings before Conciliator. The primary role of a conciliator is to act as intermediary or a facilitator. He is not to adjudicate either on the merits of the demands or the conciliation notice. Adjudication is outside the ambit of the conciliation officer. Section 29(5) of IRO 2002 be followed by the following proviso:-

" Provided that if either of the party to the dispute fail to agree to settle the dispute nor agree to any extension of conciliation proceedings, the conciliation officer shall issue certificate of failure of conciliation forthwith".

The Conciliation Officer should not become functus officio the moment he submits a failure report.

THUS SECTION 29(5) OF THE ORDINANCE BE FOLLOWED BY SECTION 29(6) TO THE FOLLOWING EFFECT:

"Notwithstanding failure of conciliation proceedings, the Conciliation Officer shall not be functus officio and shall, provided both the parties so request in writing, reinitiate efforts afresh aimed at the amicable resolution of the Industrial Dispute".

31. Section 31(3) IRO 2002 provides that if the strike or lockout lasts for more than fifteen days, the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, and the Provincial Government to any other dispute, 'may' by order in writing prohibit the strike or lockout. This provision of law is not happily drafted and leaves discretion with the Government functionaries, leading to increasing agony for the parties, disruption of production and industrial peace. The word 'may' is discretionary. It should be replaced by the word 'shall'. The idea behind strike or lockout is not to bleed the employer or the workers indefinitely. In any Industrial Dispute, the welfare of the community, loss of revenue to government, its likely effects in other neighbouring industrial and commercial establishments are to be taken into account. Strike or lockout, proceeds on the assumption of 'no work, no pay' Hence the word 'may' be replaced with the phrase 'shall' in section 31(3), IRO 2002. Past experience especially in Karachi have shown that in some cases like Golden Industries, Golden Plastics, Elite Publishers Limited, etc, the 'legal' strike have continued for 60 days or more without any interference by the Provincial Government to prohibit the strike or refer the dispute to the Labour Court. Industry, employer and workers suffer. Industrial peace and harmony is effected and loss of revenue takes place. Neither workman nor employer should be at the mercy of a public functionary who may or may not recommend prohibition of strike or lockout, as they have their own 'axe to grind'. Hence the necessity of incorporation of the suggested amendment which is in the larger national interest and for the maintenance of industrial peace and harmony.

32. Section 33 of the Industrial Relations Ordinance, 2002 is equivalent to section 34 of the repealed section 34 of IRO 1969 except to the extent the phrase, 'for the redressal of any grievance' has been incorporated. This incorporation is liable to lead to varying interpretations and adds to the confusion. Matters of rights and matters of interest was the corner stone of the earlier Labour Policy of 1969. It was during this period that the right to strike and lockout was given statutory recognition.

However, rights guaranteed under the law, settlement or award were not subject to negotiation, hence required enforcement alone through judicial forum in the case of alleged violations. There cannot be any bargain or negotiation, hence the necessity of the introduction of section 34, IRO 1969 in the Statute, to ensure that the matter is resolved peacefully, through process of Labour Court or Commission and not through a strike or lockout.

However, insertion of phrase 'for the redressal of any grievance' will now lead to misgivings, confusion and overlapping. Redressal of any grievance is independent of pre-determined and pre-existing rights guaranteed in law, settlement and award. If there are 'any grievances' either of the employer or the CBA, other than that recognised in law, settlement or award, it may well be the subject of notice under section 25(1) of IRO 2002 for bilateral negotiations or notice of conciliation under section 25(3) read with section 27 of IRO 2002. The phrase 'for the redressal of any grievance' in section 33 is superfluous and will lead to uncertainty, chaos and confusion and be deleted.

33. Provisions of section 36 IRO 2002 may appear more or less the same as section 44 of the repealed IRO 1969. However, a close examination of the two provisions will reveal that under the repealed section 44 of the Ordinance, 1969 there was a prohibition of serving notice of strike or lockout to an industrial dispute while any conciliation proceedings or proceedings before the Labour Court or Tribunal are, or is pending in respect of any matter constituting such industrial dispute.

Now under section 36 of IRO 2002, the prohibition is on going on a strike or declaring a lockout in respect to any matter constituting such an industrial dispute. Thus both notice of a strike or a lockout now called notice of conciliation can be served. It appears that the essence, purpose and spirit behind the repealed section 44 of the Ordinance, 1969 was either not appreciated or overlooked by the draftsman while incorporating section 36 of the IRO 2002. The intention was to avoid multiplicity of proceedings, conflict of decisions, abuse of process of law. To a large extent, it was achieved by section 44 of the repealed law.

Now with the prohibition restricted to going on a strike or lockout only, which is even otherwise not mandatory, it is open to the CBA or employer to go to the Labour Court or NIRC for adjudication of Industrial Dispute, notwithstanding pendency of earlier Industrial Dispute. This will lead to multiplicity of proceedings in the Labour Court and also overlapping of proceedings adding to the widening of industrial strife and unrest as litigation entails conflict of interest between employer and the CBA; appeals in High Court, undue misuse and abuse of section 40 of IRO 2002 which confers protection during pendency of proceedings in the Labour Court.

SECTION 36 OF IRO 2002 OR EQUIVALENT NEW LAW BE SUITABLY AMENDED AND MODIFIED AS UNDER:

"Prohibition of industrial dispute while proceedings pending - An employer or CBA shall not raise any industrial dispute while any conciliation proceedings or proceedings before any conciliator, arbitrator, labour court, Commission or appeal in the High Court is pending in respect of any matter constituting such an industrial dispute."

(To be concluded)

Business Recorder [Pakistan's First Financial Daily]

 

[Neo]

Suggestions for recently proposed Industrial Relations Act 2008 - III ​

ARTICLE (May 11 2008): Section 39 of IRO 2002 deals with the procedure in case of illegal strike or lockout. It may be resorted to either in a factory or a commercial establishment. This being so, in section 39(1) the word 'in a factory' be substituted by the word 'in an establishment or part thereof'.

Thus illegal strikes or lockout in some of the branches of a bank, retail sales outlets, can be curtailed or attended to, which at present cannot be possible as the language of section 39 stands under IRO 2002. This incorporation be made in the new law.

35. In section 25-A (4) of the repealed Ordinance, 1969 as also section 46 (3) of IRO 2002, it is provided that for redressal of individual grievance, the Labour Court shall give a decision within seven days from the date of the matter being brought before it. This time frame provided is hard to be complied with and is both impossible to attain and also impracticable to achieve.

Experience has shown that proceedings before the Labour Court are not concluded before one to two years. There are cases as old as five or six years that are still pending before the Labour Courts.

SOME OF THE REASONS FOR THIS INORDINATE DELAY IN THE LABOUR COURTS ARE:

a) Non-availability of Presiding Officer and vacancy due to transfer or retirement of Presiding Officers in the Labour Courts in some cases for months/years, and the non-appointment of the Presiding Officer by the Provincial Government.

b) Full-fledged application of CPC in cases of individual grievances, like filing of written statement, framing of issues, filing and or oral recording of evidence, and lengthy cross-examination, oral/written arguments etc.

c) Delay on the part of the Presiding Officer once the case is reserved for orders, in writing decisions and announcing the same within reasonable time.

d) Delay caused due to repeated adjournments sought by the counsel, or the representatives, either on personal grounds, engagements in other courts/Tribunals or even High Court etc or on unavoidable grounds like general strikes in the city or transport strike etc.

e) Indifferent attitude on the part of some counsel/representative to willfully and deliberately prolong litigation with an eye on 'back benefits' granted to the workers on reinstatement.

f) Conduct aimed to prolong litigation so as to make workers virtually suffer and 'bleed' so that the matter is settled on terms dictated by the employer.

g) Lack of facilities to the Presiding Officers who are District Judges, by not providing equivalent facilities in the District, leading to a feeling of discontentment amongst them whilst posted as, Labour Court Presiding Officers.

h) Lack of adequate facilities like a library, books, steno etc resulting in delays in disposal of cases.

i) Location of Labour Courts, specially in Karachi and Lahore, at different premises leading to the logistical problem of the counsel/representatives, thus delay in attending courts in time, hence adjournments.

36. The above are some, though not all, and there are many other reasons, for the inordinate delay in Labour Court proceedings which add to the misery and suffering of the workers, as also of the employers. This calls for concerted joint effort on the part of the counsels, representatives and the Presiding Officer, under the supervision of the respective High Courts, to ensure that delays are avoided and expeditious disposal of cases are effected. Both the Federal Government in the case of NIRC, and the Provincial Governments, in the case of the provinces, should ensure that the essence and spirit of time for disposal, which although is not mandatory, are complied with in all earnestness. The Hon'ble Chief Justice of the provinces can be requested to take the initiative to examine reasons and root causes of these delays and periodically, and at regular intervals issue appropriate directives to avoid delays. Co-operation of the Bench and Bar is essential. Active assistance, co-operation and suggestions of Industrial Relations Advisors Association in Sindh and NIRC Bar Association in Lahore can be sought and in a spirit of mutual goodwill and harmony the matter of delay, which is not insurmountable, can be addressed and resolved in the larger interest of industrial peace and harmony in the country.

Section 43 of IRO 2002 deals with representation of parties. Law framers and Policy formulators should recognise this is a very volatile and highly sensitive issue. The survival of the trade union movement depends, to a large extent, on the right of representation before various organs of the Labour Judiciary.

There can be certain inherent checks and balances, so as to ensure that poor, illiterate workers, or the employer, are either misled or misguided. This can be attained by the framing of rules by the respective Provincial Governments. At present, reference only to Industrial Disputes has been made in law.

In fact, individual grievance petitions under the repealed section 25, IRO 1969 or section 46, IRO 2002 form the major work load, either before the Labour Courts or the Labour Appellate Tribunal. Thereafter, comes cases under section 34 of the repealed law or section 33 of the IRO 2002. Industrial disputes are hardly few.

It is apparent, the draftsman have neither examined, nor obtained statistical data as to the various provisions under which cases are filed or are pending in the Labour Court or the Tribunal, including cases pertaining to interpretation of settlement or award in the Tribunal.

Any attempt aimed at imposing clog or right to representation of worker will be met by unions with resistance. Section 43, IRO 2002, or an equivalent provision hereinafter, should thus be rephrased as under:

REPRESENTATION OF PARTIES:

(1) A Collective Bargaining Agent or a workman shall be entitled to be represented in any proceeding under this Act by an office bearer of any Collective Bargaining Agent, subject to his fulfilling the conditions as laid down in the rules.

(2) Any employer who is a party to any proceedings under this Act, shall be entitled to be represented by a person duly authorised by him, subject to such an authorised person or otherwise fulfilling the conditions as laid down in the rules. Provided that any legal practitioner can appear, as of right, in any proceedings under this Act.

(3) No party to an Industrial Dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act."

37. In view of the above observations, it is essential that the government re-examine the decision to abolish the Labour Appellate Tribunal in the Provinces. If appeals under section 52 of IRO 2002 against the decision of the Bench of NIRC can be filed before the Full Bench of NIRC, and not in the High Court, then even on this ground, consistency is to be maintained in the case of decisions/awards of the Labour Court.

If the reasons for abolishing the Labour Appellate Tribunals are valid, they do equally apply in the case of National Industrial Relations Commission as an appellate forum.

38. The text of the revamped NIRC and section 49 and onwards of IRO 2002 or equivalent provision in the new Act be as under:

NATIONAL INDUSTRIAL RELATIONS COMMISSION: The Federal Government shall, in consultation with the Chief Justice of Pakistan, constitute a National Industrial Relations Commission consisting of not more than five Presiding Officers, including one to be nominated as Chairman.

A person shall not be qualified for appointment as Chairman, unless he is a retired Judge of the Supreme Court. The Presiding Officer shall not be qualified for appointment unless he has been a judge of High Court.

(3) Terms and conditions of service for appointment as Chairman and Presiding Officer of the Commission shall be such as may be determined by the Federal Government.

(4) THE FUNCTIONS OF THE COMMISSION SHALL BE TO:

a) adjudicate and determine any industrial dispute to which an industry wise trade union or a federation of such trade union or the employer, is a party and any other industrial dispute which in the opinion of the Federal Government is of national importance as is referred to it by the Government;

B) TRY OFFENCES PUNISHABLE UNDER:

(i) Section 64 and 65 in relation to workman, a trade union of workman or any of its members or office bearers provided they are in relation to industry-wise trade unions, a federation of such trade unions, a federation at the national level or office bearers of such trade unions or federation, and the employer in such establishments, where such an industry-wise trade union is certified as the collective bargaining agent.

(ii) any other provision in so far as they relate to employees or workers in relation to an industry-wise trade union, a federation of such a trade union, a federation at the national level, or office bearers of such a union, or federation.

c) Determine Collective Bargaining Unit, on an application made in this behalf, by a trade union of workman or a federation of such a trade unions, or by the employer, or on a reference made by the Federal Government. Such determination of CBU shall be determined by the Presiding Officer or the Chairman, after holding such an inquiry in a summary way, and after hearing all the parties concerned within a period not exceeding fifteen days.

Whilst determining the CBU, the Chairman or the Presiding Officer shall ensure that the interest of the workmen and the employer are equally safeguarded and that it is necessary, just and feasible to determine one or more collective bargaining units of such workmen in such an establishment, having regard to the distribution of workers, existing boundaries of the component of such an establishment, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors that determine one or more collective bargaining unit in such an establishment and specify the date or dates from and the period for which, all or any, such changes shall take effect.

The decisions of such determination of the CBU shall be subject to appeal in the High Court at the principal seat of office of the Chairman and, or the Presiding Officer, determining the issue within thirty days of the order.

d) to deal with individual grievances of workman in establishments in more than one provisions, for the enforcement of pre-determined and pre-existing rights guaranteed and secured to them in laws, settlement or award for the time being in force.

e) To enforce pre-determined and pre-existing rights, either of the employer and, or the Collective Bargaining Agent guaranteed and secured to them in law, settlement or award for the time being in force, in establishments in more than one province.

EXPLANATION: In this section and in the succeeding provision of this Act, the expression, industry-wise trade unions, federation of such trade union and federation at the national level refers to a trade union of workman, membership of which extends to an establishment in more than one province and a federation of trade union whose membership extends to a registered trade union in more than one province.

5) The Chairman and or the Presiding Officer shall not take any action, or entertain any application or proceedings, in respect of any application or matter within the jurisdiction of a Labour Court, or is otherwise justiciable before the Labour Court.

39. BENCHES OF THE COMMISSION ETC:

i) The Chairman of the Commission shall exercise general superintendence over all judicial proceedings of the Presiding Officers and ensure the proceedings are expedited and decisions/awards given, either by him and or the Presiding Officers, expeditiously, not later than sixty days from the date of reference and or filing of such industrial dispute.

ii) The Chairman and the Presiding Officers shall decide and announce the decisions within fifteen days from the date, the case and, or proceedings are reserved, for orders.

For efficient performance of the functions of the Commission, the Chairman, shall constitute a Full Bench comprising of himself and two other Presiding Officers for adjudication and determination of the industrial dispute referred to the Commission as a matter of national importance, provided that if any member of the Full Bench is absent, or is otherwise unable to attend any sitting of the Commission, the proceedings of the Full Bench shall continue and shall not be invalid or be called in question. Provided further, that the interim or final award shall however, be given by the Full Bench of the Commission.

If any interim order or stay has been given either by the Chairman or the Presiding Officer, the same shall be either confirmed or vacated, after giving notice and hearing the parties, within one month of the grant of such stay or order. Provided that on expiry of the said period, the order or stay shall be deemed to have lapsed and is of no further legal effect.

40. POWER OF CONTEMPT: Subject to provisions of any law, the Full Bench of the Commission shall have powers to punish any person who, willfully and deliberately and with impunity, fails to obey and or comply with the award or decision of any of the Presiding Officer and, or Chairman of the Commission.

41. APPEALS: Any person aggrieved by an award or decision given by, or determination of CBU made by the Commission, including the Chairman or Full Bench of the Commission or a sentence passed by the Commission, may appeal against the said decision, award, sentence or determination of the CBU to the High Court in the province where the decision was delivered within thirty days of such a decision, award, sentence or determination.

42. The NIRC shall periodically, every three months, send to the Chief Justice of Pakistan, details of the cases instituted, decided on the merits and pending cases. Reasons for delay in the disposal of the cases within the period specified hereinabove, and as to the reasons for non-pronouncement of the decision/award within fifteen days of its being reserved for orders shall also be assigned to the Supreme Court who shall exercise overall control and superintendence over the functions of the Commission, just as the Labour Appellate Tribunal exercises control and superintendence over the functions of the Labour Court.

43. In section 57 IRO 2002 the Registrar of Trade Unions ("RTU") is to be appointed by the Provincial Government through Notification in the official Gazette. The functions of the Registrar Industry wise trade union and the federation of such unions at the national level, is also suggested to be assigned to the respective RTU of the provinces.

THE PROVISIONS OF SECTION 57 SHOULD THUS CONTAIN CLAUSE (II) TO THE FOLLOWING EFFECT: "The Federal government through notification in the official gazette, nominate the provincial registrars of the trade unions in each of the four provinces to exercise and perform the powers and functions of Registrar Industry wise Trade unions under this Ordinance".

44. In section 58 of IRO 2002, the functions and powers of the Registrar of Trade Unions has been detailed. In section 58(b), one of the function of the Registrar of Trade union is to lodge or authorise any person to lodge complaints with the Labour Court. The word 'any person' has been willfully and deliberately left vague. The Registrar of Trade Unions interprets it to mean any person from the Labour Directorate.

Past experience of Labour Court proceedings filed by RTU show that these 'any person" either do not attend the Labour Courts or adopt a casual, indifferent attitude in court proceedings, either attending late and even record evidence casually in support of their complaint.

These subordinate officials of the Labour Directorate are hand in glove with the other side and follow the policy of "you scratch on by back, I scratch yours". Invariably, half way through, the complaints are withdrawn arbitrarily, and without any reason, much to the agony of the employer.

SECTION 58(B) OR EQUIVALENT PROVISION IN THE NEW ACT BE REDRAFTED AS UNDER: "to lodge, or authorise any person, including the employer to lodge, complaints with the Labour Court or Commission for action including prosecution, against trade unions, employees, workers or other persons for any alleged offence or any unfair labour practice, or violation of any provision of this Act, or for expending or obtaining the funds of a trade union in contravention of the provisions of its constitution".

45. This settled law, as to the binding effects of settlement both in India and Pakistan, has been recently unsettled by a recent pronouncement ignoring altogether the almost devastating effect, its interpretation has on labour-management relations, leaving door open to disgruntled and rival groups in the union to disown or disassociate themselves as individuals to the agreement, the although CBA is a party to such an agreement.

To remove this apparent opportunity provided to individuals to disown agreements concluded by their CBA, it is suggested that section 59(2) of IRO 2002 or its equivalent law be redrafted as under:

"A settlement arrived at by agreement between an employer and a collective bargaining agent otherwise than in the course of conciliation proceedings, shall equally be binding on all workmen employed in the establishment or industry and also irrespective of membership of such workman with the CBA".

46. At present, two months' notice to terminate settlement, where no period is provided and award, irrespective of period of operation is essential. As against this if a period of operation of settlement or agreement is provided in the agreement or settlement, no notice to terminate the agreement or settlement is required.

There is thus an apparent contradiction. To bring uniformity and consistency in law, it is suggested that the law be amended and be made incumbent to terminate all settlements, agreements or award, irrespective of period of operation of the award, settlement or agreement through the notice of two months in writing to be no longer bound by such agreement, settlement or award.

47. In section 62 of IRO 2002 or any other equivalent law, hereinafter, any money due from an employer under an award, settlement or decision of the arbitrator, Labour Court or High Court may be recovered as arrears of land revenue.

Once again award given by NIRC, based on the dispute against or by industry wise trade unions or on matters of national importance referred to the NIRC by Federal Government seems to have been overlooked and needs to be incorporated, hence the word 'Commission' should follow the word 'Labour Court'.

Furthermore, this section proceeds on the assumption that the recovery of money can only be due from an employer under any award or settlement. There can be eventuality of recovery of dues from the workers, through the CBA under any award given either by the Labour Court, Arbitrator or the Commission or the High Court or under a settlement with the CBA.

After all, an employer too has been conferred the right to raise an industrial dispute, serve notice of conciliation and have their demands adjudicated from the Labour Court or the Commission, as such section 62 be suitably rephrased as under:

RECOVERY OF MONEY DUE FROM OR BY AN EMPLOYER UNDER AN AWARD OR SETTLEMENT:

(i) any money due from an employer or Collective Bargaining Agent or workers under any award or decision of the arbitrator, Labour Court, Commission, or High Court may be recovered as arrears of land revenue, or as a public demand, if upon an application of the person or company or employer entitled to the money, the Labour Court so directs;

(ii) where any workman or employer is entitled to receive from the employer or CBA or workers, as the case may be, any benefit under an award, settlement, agreement or decision of the arbitrator, Labour Court, Commission or the High Court, which is capable of being computed in terms of money, the amount at which such benefits shall be computed may, subject to the rule made under this Ordinance, be determined and recovered as provided for in subsection (1) and paid to the workman or employer concerned by a specified date".

49. Provisions of section 63(1)(i) IRO 2002 presently treats "close down the whole of an establishment in contravention of Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968" as an act of unfair labour practice.

This clause is against Article 18 of the Constitution of Pakistan dealing with freedom of trade, business or profession. Every law which is inconsistent with the Fundamental Right is void (PLD 1965 SC 527/588). Any restriction relating to Freedom of Trade, business or profession, even if provided by law would be hit by Article 18 of the Constitution, subject to the provisions contained in the proviso contained therein (1992 SCMR 1152).

As a person could not be compelled to commence a business to provide employment for several unemployed persons, so also, no person could be compelled to continue a business though he decided for reasons of his own to stop it.

This clause, as also Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, can well be attacked on the ground that in the guise of regulating activity, it has, in fact prohibited it, as also on the ground that law making power amounts to excessive delegation of excessive power.

If a court or a judicial officer imposes a restriction on the right otherwise given under Article 18 of the Constitution to an employee it would offend the Constitution. No citizen of this country can be compelled to carry business, trade or profession against his will. Right to carry business, imply not to carry business.

Freedom to carry on any trade or business would be meaningless in the absence of freedom from an obligation to carry on any other trade or business, or not to do the business. The very conception of a fundamental right is, that it is a right guaranteed by the Constitution and cannot be taken away by law.

It is thus suggested that the clause in Section 63(1)(i) of IRO 2002, or any law replaced in the new Act, be altogether deleted, being ultra vires Article 18 of the Constitution.

50. Section 73 of IRO 2002 deals with 'Offences by corporations'. It provides that every director, manager, secretary or any other officer or agent, unless he proves the offence was committed without his knowledge or consent, be deemed to be guilty.

This provision is against the cardinal principle of criminal jurisprudence and has been exploited and both misused and abused in the past. The manager notified under the Factories Act, 1934 or the manager alone in any commercial establishment, instead of having an array of listed persons, as at present, be held responsible for offence in IRO 2002.

After all, the spirit and essence of labour legislation is cordial labour-management relations and not confrontation. Criminal prosecution or litigation involving Director etc, is no solution to the problem. It leads to heart burning and bitterness.

The law, as such, be suitably amended, restricting the provisions of section 73 IRO 2002 to only the manager in a commercial establishment or notified manager in a industrial establishment. Similarly, in case of offence by union, only General Secretary of the union be held responsible instead of calling upon all officer bearers of the union to respond to the offences.

Furthermore, Section 73 of IRO 2002 at present is restricted to 'Offences by corporation' alone and not offences by trade unions or federation. The rephrased section 73 IRO 2002 should thus read as under:

OFFENCES BY CORPORATION, TRADE UNIONS OR FEDERATIONS OF TRADE UNIONS:

(i) Where the person guilty of any offence under this Ordinance, is a Company, then if an industrial establishment, the notified Manager under the Factories Act, 1934 and if any other establishment, the Manager shall be proceeded with, for all or any, of the offences:

(ii) Where the person guilty of any offence under this Ordinance, is a trade union or a federation of trade unions, the General Secretary of the same shall be proceeded, with all or any of the offence under this Ordinance".

(Concluded)

Business Recorder [Pakistan's First Financial Daily]