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 No wonder both the labour and the management have started demanding that the Industrial Relations Ordinance 2002 be repealed. The Prime Minister has now assured the National Assembly that IRO 2002 will be repealed.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)
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