Section 23 of the Act deals with registration of federation of trade union. Any two or more registered trade unions may, if their respective general bodies so resolved, can constitute federation by executing instrument of federation and apply for registration.
However, the trade union of workmen shall not join a federation which comprises a trade union of employers, nor shall a trade union of employers join a federation which comprises trade union of workmen. Any instrument of federation shall, among other things, provide procedure to be followed by the federation of trade union and the rights and responsibilities of the federation and the federated trade union. The application for the registration of federation shall be signed by the presidents of all the trade unions constituting the federation or by the officer of these trade unions, authorised by the trade unions in this behalf.
Section 24 of the Act deals with submission of returns. A trade union is required to submit to the registrar on or before such date as may be prescribed, a statement audited in respect of all receipts and expenditure during the year ending 31st December. As also declare the assets and liabilities of the trade union existing as on 31st December. A statement shall also be sent showing all changes of officers made by the trade union during the year to which the statement refers, together with total paid membership and the copy of the constitution of the trade union corrected up to date of the dispatch to the Registrar.
A copy of every alteration made in the constitution of registered trade union and the resolution of the general body having effect of the provision of the constitution, shall be sent to the registrar within 15 days of the making of the alteration or adoption of the resolution.
In terms of Section 25 of the Act, if there is only one registered trade union in an establishment or a group of establishments, and that trade union consists of not less than one third of the total number of workmen employed in such establishment or group of establishments, it shall be certified as the collective bargaining agent. Where there are more registered trade unions than one in an establishment or a group of establishment, the registrar shall, upon an application by a trade union which has not less than one third of the total number of workmen employed in such establishment, hold within fifteen days from the making of application of secret ballot determine as to which one of such trade union shall be collective bargaining agent for the establishment or group.
In case of establishment having its branches in more than one town, the registrar shall hold the ballot within 30 days from the making of the application. The registrar shall not entertain any application for determination of a collective bargaining agent in an establishment which is a seasonal factory unless such application is made during the month in which the number of workmen employed in such a factory is usually the maximum.
The registrar, by notice in writing, is required to call upon every registered trade union, to indicate whether it desires to be a contestant in the secret ballot, and if it so desires, to submit to him within the specified time, list of its members, their parentage, age, section or department, place in which they are employed, ticket number, and date of employment.
Every employer, on being required by the registrar will submit the list of workmen employed in the employment excluding those whose period of employment in the establishment is less than three months showing in respect of each workman, parentage, age, section or department and the place in which he is employed ticket number and date of his employment.
The employer is required to provide such facilities for verification of the list, so submitted by him, as the registrar may require for the purpose of computing period of three months in a seasonal factory, the period during which he was employed in the factory, during the proceedings session shall also be taken into account.
The registrar, after verification of the list, prepare a list of voters in each establishment including the name of every workman whose period of employment is not less than three months and who is a member of any of the contesting union and shall, at least four days prior to the date fixed for ballot, the registrar shall send to each of the distinct union a certified copy of list of voters so prepared. Every workman whose name appears in the list of voters shall be entitled to vote for determination of collective bargaining agent. The employer is required to provide all such facilities in his establishment as may be required by the registrar for the conduct of the ballot and the employer is prohibited from interfering or in a way influencing the vote.
No person shall canvass for voting within a radius of 50 meters of ballot station. The Registrar shall fix the date for the ballot and intimate the same to each of the distinct Union and the employer.
On the date fixed for the ballot, balloting station shall be set up, ballot polls and boxes shall be placed which will be sealed in the presence of the representatives of the contesting union who will have the right of being present during the conduct of the poll. After election of the ballot and in the presence of each of the representative of the contesting trade unions, the registrar shall open the ballot box and count votes, and after election of count, certify the trade union which has received the highest number of votes to be the collective bargaining agent.
No trade union shall be certified to be the Collective Bargaining Agent unless the number of votes received is not less than one third of the total number of workmen employed in such establishment. If no trade union secures such number of votes in the first ballot, the second ballot shall be held between the trade union which secured the two highest numbers of votes in the first ballot and the Trade union which secures majority of the votes at the second ballot shall be certified to be the Collective Bargaining Agent. If in the second ballot the number of voters is equal, further ballot shall be held between both the unions until one of them secures majority of the votes cast at such further polls.
If no trade union desires to be a contestant in the secret ballot, the registrar shall certify the trade union which has made application to be the Collective Bargaining Agent. Once the Collective Bargaining Agent has been established no application for determination of CBA shall be entertained within a period of two years from the date of such certification except in the case the registration of trade union has been cancelled before the expiry of two years.
Once the CBA has been determined in an establishment or group of establishments, it is entitled to undertake collective bargaining with the employer on matters connected with employment, non-employment, terms of employment or the conditions of work other than matters which relate to enforcement of rights guaranteed or secured by or under any law, settlement or award.
A Collective Bargaining Agent is entitled to represent all or any workman in any proceedings, give notice and or declare strike in accordance with law and is legally entitled to nominate representatives of workmen on the Board of Trustees of any welfare institution or provident fund or workers participation fund established under the Company Profit (Workers Participation) Act 1968. The registrar is legally allowed to authorise in writing an officer to perform all or any of his functions under Section 25 of the Act.
NATIONAL INDUSTRIAL RELATIONS COMMISSION: Section 26 of the Act deals with the constitution of National Industrial Relations Commission, which shall consist of not less than seven members including the chairman. The qualification for appointment of the chairman and the members shall be determined by the Federal Government and its appointment will also be made by the Federal Government. Two Members can be appointed to advise the Chairman, one representing employer and the other representing Industry wise trade union, federation of such trade union and federation at the national level.
The Chairman of the National Industrial Relations Commission is also empowered to co-opt in case where he deems it necessary from amongst workers such representatives of workers as he may deem fit. The representative of workmen shall be entitled to honorarium as the Federal Government may determine.
The functions of the Commission shall be to promote formation of trade unions of the workers within the same industry in an establishment within a province or in more than one province, to promote formation of federation at the national level, adjudicate and determine industrial dispute to which industry wise trade union or a federation of such trade union is a party, and any industrial dispute which is, in the opinion of Federal Government is of national importance and has been referred to it by the Federal Government.
The Commission can register industry wise trade union, federation of such trade union and federation at the national level and is entitled to determine Collective Bargaining Agent amongst industry wise trade union, federation of such trade unions, federation at national level.
It can try offences dealing with unfair labour practices and deal with cases of unfair labour practice either on the part of employers, workers, trade union of either of them. National Industrial Relations Commission is also empowered to advise government, industry wise trade union and federation in respect of adjudication of the workers in the essentials of trade unionism, including matters in respect of their rights and obligations and to perform such other functions as Federal Government by notification in the gazette assign it from time to time.
The National Industrial Relations Commission, on an application of a party, or on its own motion can initiate prosecution, trial or proceedings or take action with regard to any matter relating to its function and also withdraw from the labour court, any application, proceeding or appeal relating to unfair labour practice. The Commission may proceed directly with the case or ask the registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit report or even refer the case to a labour court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal, the labour court to whom the matter has been referred for report, is required to forward its report to the Commission and if the case is referred to the labour court for disposal, the Labour Court will continue the proceedings and dispose of the case, as if the proceedings had originally commenced before and it can grant such relief as Commission has the power to grant.
However, no registrar, labour court or tribunal shall take any action or entertain any application or proceedings in respect of any matter which falls within the jurisdiction of the Commission. Nothing will exclude the jurisdiction of a Labour Court to entertain cases of unfair labour practice on the part of employers or workmen whether individually or collectively.
However, no labour court shall take any action or entertain any application in respect of any case of unfair labour practice which has been dealt with by the Commission. Industry wise trade union, Federation of such trade unions and Federation at national level has been defined and referred to a trade union the membership of which extends to establishments in more than one province.
In terms of Section 27 of the Act, the Chairman of the Commission is to exercise general superintendence and for the efficient performance of the functions he shall constitute a Full Bench of the Commission of not less than three members and as many other benches of the Commission consisting of one or more members of the Commission. The bench in relation to cases based on allegation of unfair labour practice or for redressal of individual grievances in respect of right guaranteed or secured by and or under any law, settlement or award, perform such functions as are exercised by the Labour Court and in relation to industry wise trade union, perform such functions and exercise such powers as are exercised by the registrar, Labour Court, or the Tribunal within a province.
If the member of the Commission is absent or is otherwise unable to attend any sitting, the proceedings of the Commission may continue and the decision so given shall not be invalid or called in question merely on the ground of absence or existence of vacancy in the constitution of commission.
If the Bench differs on any ground the issue will be decided on opinion of the majority and if the members are equally divided, the matter will be referred to the Chairman of the Commission, who shall decide the matter on the basis of the majority of the members of the Commission. The order or decision or an award or sentence passed by the Bench of the Commission is subject to appeal in terms of Section 29 of the Act, before the Full Bench of the Commission comprising at least three members of the Commission. Powers of contempt have also been conferred on the Commission in terms of Section 28 of the Act.
In terms of Section 31 of the Industrial Relations Act 2008, the Commission has been empowered to determine a Collective Bargaining Unit. This can be done on the basis of an application made by a trade union of workmen or even on a reference by Federal Government, such determination shall be made after holding enquiry provided the Commission is satisfied that for safeguarding the interest of workmen employed in the establishment, it is necessary, just and feasible to determine one or more Collective Bargaining Unit of such workmen in such Establishment or Group.
The Commission, keeping in view regard to the distribution of workers, existing boundaries of the component of such establishment or Group, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors, may certify one or more Collective Bargaining Units and specify the modification in consequence to the decision, it will take effect with regard to the registration of the union and also specify date from which the change will take effect. Once a Collective Bargaining Unit is determined, no trade union shall be registered in respect of that unit except for the whole of such unit and no certification or proceeding for determination of Collective Bargaining Agent shall take place for a part of Collective Bargaining Unit.
By virtue of Section 32 of the Act, the Commission has been empowered with prior approval of the Federal Government, to make regulations relating to its procedure and performance of its functions, notwithstanding any thing inconsistent therewith in Qanun-e-Shahadat Order 1984, Code of Criminal Procedure, 1898 and Civil Procedure Code, 1908 or any other law for the time being in force and regulations so framed by the Commission or provided for registration or industry wise trade union, determination of Collective Bargaining Unit and Collective Bargaining Agent, procedure including recording of evidence for adjudication of industrial dispute, and for trial of offences and for dealing with Unfair labour practice, superintendence of the chairman over the affairs of the Commission etc.
In terms of Section 33 of the Act, concept of check off has been provided. A collective bargaining agent may request employer on behalf of the workman who are members of the trade union, to deduct from the wages of the workmen, such amount toward their subscription to the funds of the trade union as may be specified, with the approval of each individual workman named in the statement furnished by the trade union. The employer shall make deduction, and shall, within fifteen days of the period for which deduction has been made, deposit the entire amount so deducted in the account of the trade union on whose behalf he has made deduction.
The Collective Bargaining Agent shall maintain an account with a branch of National Bank of Pakistan or with Post Office saving bank account, which shall be credited with the entire amount so deducted by the employer from the wages of the members of the trade union. The employer is required to provide facilities to the Collective Bargaining Agent for ascertaining whether deductions from wages of its members are being made.
WORKERS PARTICIPATION AND DISPUTE RESOLUTION: Section 34 of the Act deals with the establishment of Shop Steward in establishments wherein fifty or more workmen are employed. Where there is a collective bargaining agent, shop steward shall be nominated by the collective bargaining agent and where no Collective Bargaining Agent exists in establishment, Shop Steward shall be elected through secret ballot. An employer is required to provide facilities for holding such ballot.
Shop steward shall hold office for a period of one year and any dispute in connection with the election of the shop steward shall be referred to the Registrar of Trade Unions, whose decision shall be final and binding. The shop steward is expected to act as a link between the workers and the employers and the shop steward is required to assist in the improvement of arrangement for physical working conditions, production work in the shop, section or department and help workers in the settlement of their problems connected with work or with any such individual grievance.
Section 35 of the Act deals with workers participation in the management. Every factory employing fifty persons or more shall elect or nominate workers representative to participate to the extent of 50% in the management of factory. The workers representative, where there is Collective Bargaining Agent be nominated by Collective Bargaining Agent, and where there is no Collective Bargaining Agent, the election shall take place through a simple majority in secret ballot.
The representative of the workers shall hold office for a period of two years from the date of election or function as workers representative who shall participate in all meetings of the Management Committee and in all matters relating to the management of factory except commercial and financial transactions. No decision shall be taken by management without advice in writing of the workers representative in relation to framing of rules and policy about promotions and discipline of workers, changing physical working conditions in factory, in-service training of workers, recreation and welfare of workers, regulation of daily working hours and breaks, preparation of leave schedule and matters relating to the order and conduct of workers within factory.
The workers representative may give in writing advice concerning the matter referred to hereinabove and management is expected to discuss the same on merit within two weeks of receipt of such advice. If the advice is rejected the Collective Bargaining Agent may call for bilateral negotiations and thereafter the matter will be settled in a manner as provided in Section 43 of the Act to be discussed herein below.
Section 36 of the Act provide for Joint Management Board. Every company employing 50 or more persons is expected to set up a Joint Management Board. The employer's representative shall be from amongst the Directors or Senior Executives and the Worker's Representative shall be from amongst workers employed in the factory. The board shall look after matters pertaining to improvement in production, productivity efficiency, fixation of job, and piece-rates planned regrouping or transfer of workers, laying down the principles of remuneration and introduction, new remuneration methods and making provision for maximum facilities for such of the workers employed through contractors as are covered by the laws relating to welfare of workers.
Section 37 of the Act deals with appointment of Inspectors under the Factories Act 1934 and such other persons not conciliator for ensuring compliance of the provision of laws relating to workers participation in management and joint management board. Penalty has been prescribed for obstructing Inspector in the performance of his work.
Section 40 of the Act deals with Constitution of Work Council. In every establishment employing 50 or more persons, workers representative shall be nominated by the Collective Bargaining Agent. The function of the work council shall be to promote measures for securing and preserving good relations between employer and worker and to make endeavour to promote settlement of dispute through bilateral negotiations, promote security of employment of workmen and conditions of health and job satisfaction, taking all measures for facilitating good and harmonious working conditions in the establishment and provide educational facilities for children of the workmen and to otherwise discuss any other matter of mutual interest with a view to promote better labour management relations.
Section 41 deals with Work Council. This is to be formed to promote measures for securing good relations between an employer and his workmen and is aimed to endeavor to maintain continuous, sympathy and understanding between the employer and the workmen, promote settlement of differences and dispute through bilateral negotiations, promote security of employment for the workmen and conditions of safety of health and job satisfaction in their work, taking all measures for facilitating good and harmonious working conditions in the establishment, to provide educational facilities for children of workmen in secretarial and accounting procedure and to promote their absorption in these departments of the establishment and to otherwise discuss any other matter of mutual interest with a view to promote better labour management relations.
In terms of Section 42 of the Act, procedure has been provided for individual workers for redressal of individual grievances. The law provides that a worker may bring his grievance in respect of a right guaranteed or secured to him under any law, award or settlement to the notice of his employer either himself or through his shop steward or collective bargaining agent within three months of the date on which such grievance arises and the employer is required to communicate its decision in writing to the worker within fifteen days.
If the collective bargaining agent or the shop steward brings the grievance of the workers to the notice of the employer, the decision has to be communicated within seven days. A worker if dissatisfied with the decision, or if the employer fails to give a decision then either the worker or shop steward or collective bargaining agent may take the matter to the labour court within two months from the date of communication of the decision by the employer. The labour court is expected to give its decision within seven days after going into all the facts of the case.
The Labour Court is required to pass an order as may be just and proper in the circumstances of the case. If a decision of the Labour Court or the decision of the Labour Appellate Tribunal is not complied with, the defaulter is to be punished with imprisonment for a term which may extend to one year and or fine which may be extended to Rupees Fifty thousand or both. Labour Appellate Tribunal is to be constituted in terms of Section 56 of the Act which will be discussed herein below.
Section 43 of the Act deals with the entire procedure pertaining to the manner in which an industrial dispute can be raised either by the employer or the CBA. It provides that after the employer or the collective bargaining agent finds that industrial dispute has arisen, the employer or the collective bargaining agent will communicate its demands in writing to the other side, who shall within ten days of receipt of demands, commence bilateral negotiation. If the parties reach the settlement, a memorandum of settlement shall be recorded, signed by both parties and a copy of the Settlement shall be forwarded to the conciliator and other authorities as provided for in law.
If no settlement is reached between the employer and collective bargaining agent and there is a failure of bilateral negotiations, the employer or the collective bargaining agent may within seven days serve on the other party notice for lock-out or the notice of strike as the case may be. Conciliators are to be notified in the official gazette by the provincial government in terms of Section 44 of the Act and by the Federal Government in relation to matters relating to industry wise trade union. Such conciliators are to be appointed in relation to dispute where NIRC is competent to adjudicate and determine the matter. The period for the notice of strike or lock-out is fourteen days.
Section 46 provides that where a party to the industrial dispute serves a notice of strike or lock-out, it shall simultaneously deliver copy to the Conciliator who shall proceed to conciliate in the dispute and a copy of the notice shall also be sent to the Labour Court. Section 47 provides that the Conciliator as soon as possible is expected to call a meeting of the parties to the dispute for the purpose of bringing about the settlement. The parties to the dispute shall be represented before the Conciliator by persons nominated by them and authorised to negotiate and enter into agreement binding on the parties. If in the opinion of the conciliator the presence of an employer or any officer of a trade union connected with the dispute is necessary, the conciliator can call a meeting by issuing him the notice in writing requiring his appearance in person on the date, time and place, and it will be the duty of the employer or the officer to comply with the notice.
The conciliator is required to perform his functions in relation to the dispute and suggest to either party such concessions or modifications in their demands as in the opinion of conciliator it shall bring an amicable settlement of the dispute. If the settlement of the dispute takes places, the conciliator shall send the report to the Government with Memorandum of Settlement. If no settlement is arrived at, the conciliation can be extended for such period as may be agreed upon by the parties. If conciliator fails then in terms of Section 48 of the Act the conciliator will persuade the parties to refer the dispute to arbitration mutually acceptable to both the parties.
The arbitrator will be a person on the panel to be maintained by the provincial government or he can be any other person mutually agreed upon by the parties. The arbitrator is expected to give an award within the period of 30 days from the date on which the dispute is referred. He will forward a copy of the award to the provincial government which will be published in the official gazette. The award of the arbitrator shall be final and no appeal shall lie against it. The award shall be valid for a period not exceeding two years.
Section 49 of the Act provides that if no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it for arbitration, the workmen may go on strike or the employer may declare a lock-out on the expiry of notice period or upon declaration by the Conciliator that the conciliation proceedings have failed whichever is later. However, the party raising the dispute may at any time before or after the commencement of strike or lock-out make an application to the Labour Court for adjudication of the dispute. (To be continued)