It is high time that the parameters be laid down by the superior judiciary as to the grounds or circumstances under which back benefits, if any, are to be granted to be examined.
During the last six years when appeals were filed and decided by the High Court, experience has shown, at least in Sindh, though synopsis of the arguments have been filed in the High Court and copies of the same provided to the counsel of the other side, yet almost years have taken place and no arguments have been filed by the workers representatives, with the result that the proceedings have been delayed.
Unfortunately, in spite of the last chance repeatedly granted by the High Court, there have been delays much to the agony of the employer, This should come to an end if the industry is to survive and function effectively. Employers have to concentrate on their work and not be concerned about delay in the disposal of the labour cases and appeal cases and grant of "back benefits".
Already million of rupees have been deposited by employers in Karachi alone, by way of arrears of back benefits, which have been deposited originally in the Sindh Labour Appellate Tribunals and subsequently transferred to the High Court. In the last six years, this amount has multiplied three folds in the High Court.
It is this evil of back benefits, which primarily is responsible for delay in the disposal of Labour Cases, both in the Labour Court and the appellate forum. No sooner the superior judiciary evolves a long drawn strategy and lays down guidelines, even by way of public interest litigation, the performance pertaining to Labour Courts and appellate forums will improve.
It is for industrial peace and harmony and cordial labour management that these suggestions be given serious thought and attempt be made to implement the same. The basic role of the Labour Courts is not to be capitalists, humanitarians, or socialist, but to dispense justice according to law and its own nature, as honestly understood by them for all times and, subject to certain limitations from time to time.
The experience of Industrial Dispute Ordinance 1959 reveal that the right of appeal in the High Court in terms of Section 12(5) could not yield the desired results primarily because of the immense work load in the High Courts. Industrial Relations Ordinance 1969 provided for creation of special Labour Appellate Tribunals presided over by retired judges of the High Court to hear Labour Appeals.
By and large this experiment not only was successful but it provided the basis of laying the foundation of Labour Jurisprudence in the country. New and fresh numbers were allotted to these appeals in the High Court with the result that even cases instituted much earlier in the Labour Appellate Tribunals were given new numbers, resulting in their being listed at the fag end on regular hearings in the High Courts.
In spite of best efforts, these appeals were not assigned to one single permanent sitting judge of the High Court but invariably before different judges. Backlog of transferred cases, coupled with fresh institutions in six years in the High Courts, have led to a situation where Labour Appeals have now piled up to a situation, which has assumed alarming proportions.
It will, perhaps take years before these appeals are finally decided, as during the intervening period, fresh appeals will be filed in the appellate forum. As on 30th April 2008, the pending cases in the five Labour Courts at Karachi are as under:
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1st. Sindh Labour Court - 489
2nd Sindh Labour Court - 350
3rd Sindh Labour Court - 134
4th Sindh Labour Court - 520
5th Sindh Labour Court - 850
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The Prime Minister of Pakistan has announced that the Industrial Relations Ordinance 2002 will be abolished. It is presumed that the Industrial Relations Act 2008 will be placed before the Parliament. The Bill in the Senate is the first step. Hopefully, right of appeal, once again, has been conferred before the Labour Appellate Tribunals in each province and not conferred on the High Courts.
The Federal Law Minister has spoken of "Evening Courts". This experiment, perhaps, may be workable in family matters, but certainly not in labour cases. However, there is no harm to try this experiment on a trial basis in labour cases, for at least months to reduce the backlog of cases. Where there are huge pendency of labour cases, speedy disposal of cases becomes a constitutional requirement.
In India, one aspect of judicial reform that has occupied substantial time in recent years in both the Supreme Court and the Parliament, has been that of "Fast Track Courts". These "Fast Track Courts" have been created primarily for disposal of cases, specially Session's cases pending for more than two years. However, non-session cases have also been transferred to them for disposal.
This concept of Fast Tract Court can be applied to Labour Cases also in Pakistan. The Supreme Court of India clarified a few things about these courts in 2002 in a significant public interest litigation saying, amongst other things that the first preference for appointment of judges of the "Fast Track Courts" is to be given by ad hoc promotion from amongst eligible judicial officers.
The second preference shall be given to retired judges and the third preference shall be given to members of the bar for direct appointment in these courts. Further, priority shall be given by the "Fast Track Courts" for disposal of those cases which are pending for the longest period of time, and/those involving undertrials. Relevant portion of the courts order is of public interest and worth quoting in full:
"This Court has been repeatedly assured that the said scheme will continue beyond 31.3.2005. The said scheme has two components, namely, financial and infrastructural. Having introduced the Scheme under which Fast Track Courts have become operational, the scheme should not be disbanded all of a sudden. Judges have been appointed at Fast Track Courts from three sources, viz., by way of promotion, direct appointment from advocates and retired District Judges.
If the entire scheme has to be disbanded now, a chaos will be created inasmuch as not only services of several officers who had been promoted on an ad hoc basis will have to be reverted to their substantive post. But also, similarly, if corresponding promotions had been given to others, it will be necessary also to pass orders of re-reversion in such cases.
Thousands of cases are pending adjudication before Fast Track Courts. The state Governments have also appointed Special Public Prosecutors. The requirements to continue the scheme, furthermore, may vary from state to state. In some states, there may not be many session cases pending requiring continuation of the scheme, as earlier proposed. In some states, the requirement may not be of such magnitude to appoint the number of officers specified in the earlier scheme.
All these questions must be worked out and the views of the respective state government should also be ascertained. We expect the scheme to continue beyond 31.3.2005, as we were repeatedly assured that these schemes would continue. We cannot allow this scheme to be disbanded suddenly. We therefore direct the Union of India to continue the said scheme for a period of one month pending hearing and final disposal of Writ Petition No 140 of 2005 and other cases".
The Ministry of Law and Justice in India made clear in reply to a Parliamentary question in 2005, that before the expiry of the extended term (of one month) for "Fast Track Courts" given by the Supreme Court, at the initiative of the Department of Justice, the Cabinet Committee on Economic Affairs (CCEA) in its meeting held on 27th April 2005 approved the extension of existing 1562 "Fast Track Courts" for a further period of 5 years ie, up to 31 March 2010.
The decision to extend the "Fast Track Courts" for five years puts to an end to the growing confusion over the fate of these courts in India that had prevailed in recent years. On these courts, it seemed, that there is an emerging conflict between judicial will and political will. The Supreme Court of India said that they need to be put in place but the Central and State government had not shown any firm resolve to constitute them with their primary argument being lack of financial resources.
The Union Government informed the Supreme Court this year that 'the XIIth Finance Commission is considering the recommendation for continuance of "Fast Track Courts" scheme. The Law Ministry in India has recommended for continuance of the scheme and also for creation of another 1500 "Fast Track Courts" of Magistrate.
The government was pushed into giving this assurance because of the courts' earlier orders stating that Ministry of Law and Justice need to take a firm decision and that 'a decision at appropriate level could be taken by the Union of India to continue functioning of "Fast Track Court" as expeditiously as possible'.
In fact it has been specifically accepted by the Union Government that as the Supreme Court of India has set a deadline for the setting up of "Fast Track Courts" it had directed the state governments to expedite the setting up of such courts.
It is therefore suggested that in line with the Fast Track Courts in India, a similar attempt to establish Fast Track Labour Appellate Tribunals or Courts in Pakistan be provided for. Along with the Memorandum of Appeal, a brief synopsis of the Written Arguments with the relevant photocopies of the case law relied by the Appellant, should be filed and within 15 days of the receipt of the notice, the Respondent should also submit their Written Arguments.
Adjournment only in exceptional cases and for specific reasons are to be granted only on a one-time basis. Unfortunately, in Labour matters it has been experienced that, with a view to earning "back benefits", labour proceedings are delayed not only in the Labour Courts but adjournment were being sought even in the High Courts on the ground that the counsel is busy and/or on his legs before another Court. Under no circumstances should these delaying tactics be encouraged.
One way out is to submit a synopsis of the written arguments, which can be prepared a day earlier in the office of the counsel, so that the excuse of the counsel being busy either in any other court or even in the High Court is avoided.
This is the only way out to overcome the backlog of appeals, which have piled up because of the most misguided advice given to the previous Federal Government to abolish the Labour Appellate Tribunals and confer the right of appeal to the respective High Courts in the province. The present Bill in the Senate aims at rectifying this mistake.
The concept of Fast Track Courts can be adopted initially for a period of one year. If successful it should continue or else discontinued if found not workable. Both labour and management have suffered during the last six-year. It is high time that labour matters and amendment in labour laws are made by people who know the Labour laws, of course in consultation with workers and employers representatives.
Under the Industrial Relations Ordinance 1969 and Industrial Relations Ordinance 2002, both provide for union check offs and now the check off continues to be recognised in the Bill also.
It should be provided in the law that other than check off, no collection of amount of any nature whatsoever, will be effected by the Union either with or without receipt, and donations, if any, made or collected, would be accounted for and mentioned in the books of accounts of the Union and duly audited. Only thus will it be possible to prevent the misuse of the amount so collected. Redressal of individual Grievance continued to form an integral part of the Bill submitted in the Senate for Industrial Relations Act 2008.
However, under the Industrial Relation Ordinance 1969, a worker could bring his grievance in respect of any right guaranteed or secured to him by or under any law, settlement or award within three months of the date on which cause of such grievance arose. This period was reduced to one month under IRO 2002. Now once again the period has been extended to three months.
This will again be a fictitious time-barred claims filed in the Labour Court, giving sufficient time opportunity to misuse and abuse the forum of the Labour Court by filing false and frivolous litigation.
Furthermore it may be pointed out that Section 25-A of IRO 1969 or Section 46 of IRO 2002 or for that matter the new provision in the Industrial Relations Act 2008, the Labour Court is only required to entertain claims for the enforcement of pre-determined and pre-existing right and not to adjudicate and determine the rights of the parties.
In the provision in the Bill, even for the redressal of individual grievance, the Labour Court is to adjudicate predetermined and or pre-existing rights, which is a misconception of law and contrary to the essential provisions of Labour Jurisprudence.
It appears that when going through the judgement of the Apex Court and the High Court, the drafters of the present bill have simply reproduced verbatim, the provision of I.R.O. 1969 and IRO 2002 and have committed the same mistake in the present proposed Industrial Relations Act 2008 Bill in the Senate.
In so far as the provisions of law pertaining to negotiations is concerned, pertaining to the raising of the industrial dispute, there is nothing in the law to suggest that there should be some formal failure of bilateral negotiations before any notice of strike or lock out is to be given.
The Collective Bargaining Agent insists that bilateral negotiations have failed, whereas the employers claim that they are still prepared for meaningful dialogue. Therefore, there should be, under the circumstances, some mechanism whereby it can be ensured that further bilateral negotiations have failed, before any of the party serves on the other party to the industrial dispute, a notice of strike or lock out, as the case may be.
Under the repealed Industrial Relations Ordinance 1969, there was a provision for a failure certificate declaring conciliation to have failed. However, under the IRO 2002, there is no such provision. The same situation subsists at present.
Needless to mention after failure of conciliation proceedings, the conciliator is expected to persuade the parties to refer the dispute to arbitration, and only in case of refusal, or failure to accept the offer, the workers can go on strike or take the matter for adjudication to the Labour Court or the employer declare a lock out, or otherwise take the matter to the Labour Court for adjudication.
There have been numerous instances where the employers have insisted that conciliation has not failed as no failure certificate has been issued whereas workers insist that conciliation has indeed failed. To avoid any misgivings and misunderstandings, there should be a provision for issuance of failure certificate in a prescribed form, which should be prescribed under the rules to be framed in the proposed Industrial Relations Act 2008 or to be adopted as framed earlier.
The provision of law pertaining to the period or duration of strike, and or lock out, next needs to be considered. In the scheme of I.R.O. 1969 and I.R.O. 2002, as also the proposed Industrial Relations Act 2008, it is nowhere mentioned as to the period during which the workers can remain on strike or the employer can effect a lock out before any intervention is effected. The 30 days period for strike, or lock out is too long a duration.
It leads to loss of national revenue, foreign exchange earning, loss of wages all of which have to be taken into consideration. In the first instance, there should a moratorium on physical strike and a lock out voluntarily agreed upon between the workers and the CBA.
This should be enforced for a period of two years. The government should be given a free hand to ensure that the national economy is put back on track and disruption to our economy by the previous regime is repaired. If no such moratorium is accepted by the Union, then the duration of physical strike before state intervention should be reduced from 30 days to 7 days.
Even thereafter it should be within the discretion of the Provincial Government in case of strike, resorted provincially registered union or the National Industrial Relations Commission, in case a strike is resorted to by a union registered as an industry-wise trade union to prohibit a strike at any time and refer the demands either to the Labour Court or the National Industrial Relations Commission as the case may be.
Past experience has been bitter. There have been prolonged strikes in Sindh Industrial Trading Estate, especially in the case of Golden Industries and Golden Plastics, which lasted for more than three months or Elite Publisher (Pvt) Ltd, Karachi which lasted for more than two months.
Needless to mention strike or lockout serves no useful purpose either to the workers or to the employers. It leads to bitterness, loss of wages, loss of production, loss of revenue by way of excise and Sales Tax to the government and loss of Foreign Exchange in the government. The Role of the Provincial Directorate of Labour has been dubious, which did not prohibit the strike nor advised prohibition to the Provincial Secretary of Labour, until and unless the labour leaders agree in writing, to comply with the orders to call off the strike. In other words the Directorate of Labour is at the mercy of professional labour leaders.
The entire provision of law therefore needs to be revamped and after seven days, both strikes or lockouts should necessarily be prohibited by the Provincial Government and the Federal Government, and the demands be referred to the Labour Court, or the N.I.R.C. as the case may be for adjudication and determination of the demands either of the CBA or the employer.
Provisions pertaining to Joint Management Board appeared in the earlier repealed I.R.O. 1969 and IRO 2002 and the current bill in the Senate. For all intents and purposes, the concept of joint management board have been found to be ineffective and not workable.
No doubt the provision pertaining to improvement in production, productivity and efficiency are laudable, so also the fixation of job and piece rates, laid down principles of remuneration and introduction of remuneration methods and provision for facilities to workers employed through contractors.
At this stage it may be mentioned that there is a difference in Labour Jurisprudence between employee and workers employed through a contractor and giving work on contract. If a worker is employed through a contractor, then such a worker, for all intents and purposes is the employee of the principle employer.
If however, the work is given on contract, and for the execution of the contract, the contractor employs his own workmen, exercises control and supervision over them and pays them the salary, then they are not employees of the Contractor. The establishment of a contractor is a separate and independent establishment and all the provisions of the Labour law are applicable on a contractor, including the workers of the contractors right to form exclusively a trade union of workers.
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