A SHORT MEMO ON THE COMPARISON OF THE PROVISIONS OF 1969 ORDINANCE
AND ORDINANCE OF 2002
CHANGE & IMPLICATIONS
|1(1)||1(1)||CHANGE: Name has been changed from IRO, 1969 to IRO, 2002|
|(3)||(4)||CHANGE: The entire clause has been reworded. It now provides as under:
It shall apply to all persons employed in any establishment or group of establishments or industry except those employed
(a) in the Police or any of the Defence Services of Pakistan;
(c) in any installations or services exclusively connected with the Armed Forces of Pakistan including Ministry of Defence lines of the Railways;
(d) by the Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint;
(f) in the administration of the State other than those employed as workmen by the Railways, Post Telegraph and Telephone Departments;
(h) by an establishment or institution maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons excluding those run on commercial basis;
(i) by an institution established for payment of employees’ old age pensions or for workers’ welfare;
(k) as member of the Watch and Ward, Security or fire Service Staff of an oil refinery or of an establishment engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products or of a seaport or an airport.Provided that the Federal Government may suspend, in the public interest, by an order published in the official Gazette; the application of this Ordinance to any establishment or industry for a period specified in the order not exceeding six months at a time.(i)There is no change as far as applicability to police and Defence Services of Pakistan are concerned.
(ii)Now only installations or services exclusively connected with the armed forces of Pakistan are excluded, whereas previously services or installation connected with or incidental to armed forces of Pakistan were excluded.
(iii)Ministry of Defence Lines of Pakistan Railways have been excluded. Previously this was done through a Notification in the official gazette which notification had been upheld both by the High Courts as well as by the Supreme Court of Pakistan.
|(c)||Change: This related to certain categories of PIA employees. It has been deleted. Thus, Ordinance is now applicable to all workmen employed by PIA subject however to what has been provided in section 1(4)g.|
|(d)||Nill||This clause has been deleted. It related to Pakistan Television Corporation and Pakistan Broadcasting Corporation. No corresponding provisions exist in Ordinance of 2002. Therefore, this Ordinance is now applicable to all workmen employed by Pakistan Television Corporation and Pakistan Broadcasting Corporation.|
|(e)||(c)||Pakistan Mint has been excluded in addition to Pakistan Security Printing Corporation and Security Papers.|
|(f)||(e)||CHANGE:(i)In addition to establishments, Institutions have also been excluded.(ii)By using words “excluding those run on commercial basis” now hospitals etc. run on commercial basis fall within the purview of the IRO, 2002.|
|(g)||CHANGE : Words “or petroleum products or of a sea port or an air port” have been added. Now therefore watch and ward staff, security and fire services staff of these organizations are excluded from the purview of the IRO, 2002.|
|(f)||CHANGE: Words “by an Institution established for payment of employees Old Age Pensions or for workers’ welfare.The Supreme Court has in a number of cases held that IRO is applicable to the Employees Old Age Benefits Institution and even to the Social Security Institutions. Now the provisions as included indicates that the Ordinance shall not be applicable to any institution established for payment of employees Old Age Pensions or workers welfare.|
|The following proviso has been added:Provided that the Federal Government may suspend, in the public interest, by an order published in the official Gazette; the application of this Ordinance to any establishment or industry for a period specified in the order not exceeding six months at a time.IMPLICATIONS:
Previously the Federal Government had no power to suspend the IRO, 1969. Now the Federal Government has been granted power to suspend the operation of the IRO, 2002 by order published in the official gazette. Such order may be in respect of an establishment or even an entire industry. However, the period of suspension of the Ordinance cannot be more than six months at a time. It is pointed out that there is no restriction on extension or number of extensions that may be made by the Federal Government
|(ii)||(ii)||CHANGE: For “Appellate Tribunal” words “an Appellate Court of competent jurisdiction” have been substituted.IMPLICATION:
Since Labour Appellate Tribunals have been abolished, it is merely a consequential change.
|NIL||(iii)||CHANGE: A new definition of association has been included, which is as follows:“Association” means any organization of employers formed primarily for furthering and defending the interests and rights of employers.IMPLICATIONS: Previously a trade union could be of employers or of workmen. Now association has been defined for employers and trade union has been restricted to workers.|
|NIL||(iv)||CHANGE: A Board of Conciliation has been defined as follows:Board of Conciliation means a Tri-Partite Board of conciliation constituted under subsection (3) of section 26.IMPLICATIONS:
Provision has been made for constitution of a Tri-Partite Board of Conciliation for conciliating certain categories of industrial disputes.
|(v)||(v)||This section defines CBA.CHANGE: Previously CBA could be only in respect of an “establishment or industry.” Now “group of establishments” has also been included in definition of CBA.|
|(vi)||(viii)||CHANGE: Since provision has been made for “Board of Conciliators”, definition of conciliation proceedings has been enlarged to include proceedings before “Board of Conciliators”.|
|(vii)||(ix)||There is no material change.|
(j) Special provision which was as follows has been deleted:Special Provision: For the purposes of distinction from the category of “workers” or “workmen”, officers and employees of a department of the Federal Government or a Provincial Government or local authority who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of “employer”.In its place, the following clause (g) has been added:
(g)office bearers of a department or Division of the Federal or Provincial or local authority who belong to the managerial, secretarial or directorial cadre or categories of supervisors or agents and those who have been notified for this purpose in the official Gazette;
(ii) Following clause (f) has been added:
(f) a contractor or an establishment of a contractor who or which undertakes to procure the labour or services of workmen for use by another person or in another establishment for any purpose whatsoever and for payment in any form and on any basis what so ever.
(iii)Previously employer included any person responsible for “supervision” of establishment. Word “supervision” has been deleted.
(iv)Similarly in clause (viii)(e) corresponding to clause (x)(e) word supervisor has been omitted.
(i)Contractor has been included in the definition of employer.
(ii)But he must be a contractor who or which “undertakes to procure labour or services of workmen”. Thus for more care would now be required in contracting for services.
(iii)A supervisor is no longer an employer.
|(ix)||(xi)||This subsection defines an establishment. Previously, establishment was defined as under:“establishment” means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any, industry and, except in section 22-EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishment.Definition of establishment has been changed and is now as under:
“establishment” means any office, firm, factory, society, undertaking, company, shop. Premises or enterprise which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and profit and loss account and, except in section 54, includes a collective bargaining unit, if any, constituted under that section in any establishment.
(i)Previously each branch constituted an establishment. Now all branch/offices all over the country would be on establishment provided they have a common balance sheet and profit and loss account except where a separate CBU is determined.
(ii)Society, Company and enterprise have also been included in definition of establishment.
(iii)Therefore, there can be only one CBA in a company in respect of all of its branches and offices except where CBU is determined.
(iv)Registration of all trade unions which are registered on zonal, sectional or any other regional basis shall be liable to be cancelled.
|(x)||(xii)||CHANGE: Now executive of a union can be “a person” also whereas previously it could only be a “body of persons”. Union dictatorship has been granted de jure recognition.|
|(xiii)||Definition of “group of establishments has been added which is as under:“group of establishments” means establishments belonging to the same employer and the same industry.Question: When all branches / offices have been (in case of a company) declared to be one establishment, this provision appears to be a product of mere confusion.|
|(xiii)||(xvi)||This section defines industrial dispute. Three changes have been made:(i) Whereas previously disputes between employers and employers were included in definition of industrial dispute, they has now been deleted.(ii) Words “any person” have been deleted.
(iii) Whereas previously “rights secured to him” were excluded from definition of industrial dispute, now “rights secured to workers” have only been excluded. Implication is that now there can be industrial dispute in respect of rights secured to employers. The employer can no longer say, “hands off”.
|(ix)||(xvii)||CHANGE: Words “engaged in an organized 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” have been added.IMPLICATIONS:(i) Production activity must be of goods or services for sale.
(ii) Charitable organizations are excluded provided charitable purposes include: (a) Education, (b) medical care (c) emergency relief (d) need of poor (e) need of indigent.
(iii)Since word “include” is used, which is preceded by “where” it indicates that even charitable organizations would be excluded only if their purposes include the above stated purposes.
(iv)Word “exclusively” has also been used.
|(xvii)||Nil||Since now association has been separately defined, this clause has been deleted.|
|(xviii)||(xxi)||There is no material change.|
|(xxiii)||Nil||Definition of rule has been deleted.|
|(xxiv)||(xxvi)||Previously settlement was limited to agreement “between employer and his workmen”. Now phraseology has been changed to “employer, the collective bargaining agent or workmen”.|
|NIL||(xxvii)||Schedule has been defined as follows:
Schedule means “the Schedule to the Ordinance”.
|(xxvi)||(xxix)||The Changes are:|
|The changes are:
(i)Whereas previously a Trade Union was defined as a combination of “workmen or employers” now words “or employers” have been deleted. This is a consequence of separate provision of definition of association.(ii)Purpose of union has been changed from ” for regulating the relations between workmen and employers, or workmen and workmen or employers and employers or for imposing restrictive conditions on the conduct of any trade or business” to “of furthering or defending the interests and rights of workers in any industry or establishment”.(iii)Previously definition included “federations of two or more trade unions”. Now it includes “industry-wise federation of two or more collective bargaining agent union and a federation at national level of ten or more collective bargaining agent unions”.
|(xxvii)||Nil||Since Labour Appellate Tribunal has been abolished, this clause which defined Labour Appellate Tribunal has been deleted.|
|(xxvii-a)||Nil||This clause defines wage commission. Since Wage Commission and all references and provisions in respect of wage commission have been deleted, this clause has also been deleted. Wage Commission Awards are therefore no longer binding of their own force.|
|(xviii)||(xxx)||CHANGES:(i) Whereas previously workmen was defined to mean any person etc. now it has been stated to mean “any or all persons”.(ii) Whereas previously the following categories were also excluded from definition of workmen through sub clause (b) this clause has now been deleted:
“who, being employed in a supervisory capacity, draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.”
|3||3||CHANGES: There are three changes in section 3:(i) Whereas previously the freedom of association and rights contained in this section were only subject to provisions of the IRO, now they have been made subject to “the provisions of Article 17 of the Constitution of the Islamic Republic of Pakistan, this Ordinance and any other Law for the time being in force”. Any other law would obviously include section 27-B of the Banking Companies Ordinance, 1962.(ii) Clause (a) previously granted right subject to “rules of organization”. Now there are made subject to the “constitution or rules of a trade union”.
(iii)Words “without previous authorization” have been omitted.
(iv) Clause (a) as now worded gives the choice to the worker to join trade unions “within the establishment or industry there are employed in”.
(v) A second proviso has been added which states as under:
“Provided further that on joining another union, the earlier membership will stand automatically cancelled.”
(vi) Employers rights has been stated to be in respect of associations.
(vii) A new clause (d) has been added which reads as under:
“every collective bargaining agent, union shall have to affiliate with any federation at the National level registered with the National Industrial Relations Commission within two months after its determination as Collective Bargaining Agent or promulgation of this Ordinance, whichever is earlier.
|4||3(2)||Section 4 has been substantially incorporated as sub section (2) of section 3.|
|5||4||No change. It is however, pointed out that the section is restricted only to Trade Unions and is not at all applicable to associations.|
|6||5||No material change.|
|7||6||REQUIREMENTS FOR REGISTRATIONThere are four changes that have been introduced in this section:(i) Under section 7(1)(j) of IRO, 1969 maximum terms of officers of a trade union without election was 2 years. It has been changed to 3 years.
(ii) Under section 7(1)(l) of IRO, 1969, it was provided that executive shall meet at least once every year. Now it is provided that executive shall meet at least once in every four months and general body shall meet at least once every year.
(iii) Under section 7(2)(a) of IRO, 1969 it was required that all members of the trade union must be actually engaged or employed in the “industry”. Now it is provided that there must be engaged or employed in the “establishment or industry”.
(iv) For third union requirement was at least 20% of workers as its members. Now it has been increased to 25%.
|7(a)||7||DISQUALIFICATION FOR BEING AN OFFICER OF A TRADE UNIONWhereas previously only those convicted under section 61 of the IRO, 1969 were disqualified from being elected or being officer of a trade union, such disqualification has now been extended to those who are convicted of “a criminal offense of heinous nature within the meaning of the Pakistan Penal Code (Act XLV of 1860) such as theft, physical assault, murder, attempt to murder etc.”|
|8(1)||9 (1) &(2)||REGISTRATIONTwo changes have been introduced:(i) Whereas previously it was provided that the Registrar “on being satisfied” now it is provided that the Registrar “after having exercised due diligence and verification of facts and on being satisfied”. In a number of cases the Courts have held that satisfaction is a conscious state of mind and is not a mechanical act and in appropriate cases it may call for an inquiry. Now that Registrar has been burdened with the responsibility of verification of facts, it appears that the case of employer to be associated with the Registration process has become stronger.
(ii) The second sentence of sub-section (1) has been now stated as sub-section (2) of Section 9.
|8(2)||9 (3) & (4)||There are two changes:(i) When the Registrar is to issue certificate of registration it has now been provided that it shall be issued “under intimation to the employer”.(ii) The second sentence of sub-section (2) has now been stated as sub-section (4) of Section 9.|
|8(3)||9(5)||No material change.|
|8(4to6)||9 (6) to (8)||No Change|
|8(7)||9 (9)||There is only one change. Whereas previously trade union could approach a Registrar if it is aggrieved by “refusal” of the Registrar. Word “refusal” has been substituted by the word “order”.|
|8-a||10||TRANSFER ETC. OF OFFICERS OF TRADE UNION DURING PENDENCY OF APPLICATION FOR REGISTRATIONNo change.|
|9||11||CERTIFICATE OF REGISTRATIONNo material change.|
|10-(1)||12 (1)||CANCELLATION OF REGISTRATIONNo material change.|
|(2)||(3)||This section empowered the Registrar to cancel registration when, after holding such inquiry as he deems fit, he finds that such Trade Union has dissolved itself or has ceased to exist it.Now the Registrar is required to give reasons for such cancellation in writing. This is mere elaboration because it is settled law that a functionary exercising power must do so for valid and recorded reasons. Three additional grounds have been included for action by the Registrar under this section:(i) Where Trade Union is not a contestant in a referendum for determination of CBA.
(ii) Where Trade Union has not applied for determination of CBA under section 20(2) (corresponding to section 22(2) of IRO, 1969) within two months of its registration as another union or promulgation of the Ordinance of 2002, whichever is earlier provided there does not already exist a CBA.
(iii) Where the Trade Union has secured less than 15% of polled votes in the referendum.
The objective appears to be to cancel registration of dormant as well as in consequential unions.
|11||13||APPEAL AGAINST CANCELLATIONSince Labour Appellate Tribunal has been abolished appeal is provided to the High Court against an order by the Labour Court canceling registration of a Trade Union.|
|12||57||REGISTRAR OF TRADE UNIONS:No change.|
|13||58||POWERS AND FUNCTION OF REGISTRAR:No change.|
|14||14||INCORPORATION OF REGISTERED TRADE UNIONNo material change.|
|15||63||UNFAIR LABOUR PRACTICES ON PART OF EMPLOYERS:There are two changes:(i) In the opening words of subsection (1) for words ” trade union of employers” words “association of employers” have been used.
(ii) Clause (d) of subsection (1) previously included “or threaten to dismiss, discharge, or removed from employment or transfer” which words have been deleted.
Such deletion may be of significance as far as criminal prosecution is concerned because threat no longer constitutes the offense. However, where a stay is sought against apprehension of unfair labour practice, threat could be seen as a ground justifying apprehension.
|16||64||UNFAIR LABOUR PRACTICES ON PART OF WORKMEN:The following four changes have been introduced:(i) In the opening words “any of its (trade unions) “members or office bearers” have been added.
(ii) Clause (e) has been added which is as follows:
“compel or attempt to compel any member of a body, bipartite or tripartite or of any composition, relating to the functioning of the industry or is in place for the benefit of workers, to accept any demand by using intimidation, coercion, pressure, threat, confinement or ouster from a place, dispossession, assault, physical injury or by such other methods; or
(iii) Clause (g) has been added which reads as under:
“carry any arms or weapons within the premises of an employer without any legal authority”.
In our opinion, non of these additions add any additional value or teeth to the provisions.
|17||15||LAW OF CONSPIRACY LIMITED IN APPLICATIONNo change.|
|18||16||IMMUNITY FROM CIVIL SUIT IN CERTAIN CASESNo change.|
|19||17||ENFORCEABILITY OF AGREEMENTNo change.|
|20(1)||18 18(2)||REGISTRATION OF FEDERATION OF TRADE UNIONSThere are three changes introduced in this subsection:(i) Whereas previously any two or more registered Trade Union could form a federation, it is now provided that any two or more registered Trade Unions belonging to an industry may constitute an industry wise federation. It is to be noticed that in this case the Trade Unions must belong to the same industry.
(ii) Whereas previously any two or more Trade Unions could form a federation now it is provided that any ten or more registered Trade Unions with at least one from each province can form a federation etc.
(iii) Subsection (2) has been added which states as under:
“No Trade Union, federation or confederation shall be formed and registered having same, similar or identical name”.
|20(3)||18(4)||Words “Trade Unions” have been substituted by words “Trade Unions or Associations”.|
|20(4)||18(5)||Words “Trade Unions” have been substituted by words “Trade Unions or Associations”.|
|21(1)||19(1)||RETURNSTwo provisos have been added which are as follows:(i) Provided that the accounts maintained by a Collective Bargaining Agent having membership of five thousand or more shall be subject to External Audit by a firm of chartered accountants appointed by the Registrar.
(ii) Provided further that in case of the Collective Bargaining Agent having membership of less than five thousand the accounts shall be subject to audit in the manner as may be prescribed.
|21(2)||19(2)||No Material Change|
|22(1)||20(1)||COLLECTIVE BARGAINING AGENTThe word “industry” has been added after the words “establishment or group of establishments”. Otherwise there is no change.|
|22(2)||20(2)||Two significant changes have been brought about in this sub section:(i) Originally only a Trade Union having as its members not less than one third of the total number of workmen employed could apply for certification as CBA. Requirement of having one third membership has been deleted.(ii) Previously the employer as well as the government could also apply for certification of CBA. Such right has been taken away from the employer as well as the government.|
|22(3)||20(3)||No material change.|
|22(4)||20(4)||This section requires employer to submit list of employees and to provide facilities. There are two changes:(i) On being required by the Registrar the employer is required to submit a list of workmen having more than 3 months service. Now the employer is required to do so within 15 days.
(ii) The employer is also required to provide a separate list of workmen whose employment is less than 3 months showing relevant particulars.
|22(8)||20(8)||This sub section says that no person shall canvass for board within radius of 50 yards of the polling station. 50 yards have been increased to 100 yards.|
|22(9)||20(9)||There has been two changes:(i) Clause (a) required that date of poll being intimated to the employer and contesting Trade Unions. It has now been provided that this shall be done at least four days prior to the poll.(ii) Third proviso relating to where in a run of poll equal votes are secured has been deleted.|
|22(9-a)||20(10)||There is a major change. Previously it was provided that if no trade union indicates that it desired to be a contestant, the applicant union shall be certified as CBA. It has now been provided in subsection (10) as under:“No trade union shall be certified to be the collective bargaining agent under sub section (2) without holding a secret ballot”
Therefore there are two points here: firstly a ballot must be held and secondly a union which does not participate in the ballot or which secures less than 15% of the polled votes would render itself liable to cancellation of registration under section 12 of the Ordinance of 2000.
|22(10)||22(11)||This section bars further entertainment of applications for certification as CBA for a limited period. Such period was fixed at two years in the Ordinance of 1969. It has now been increased to 3 years.|
|22(12)||22(13)||There is only one change which is in clause (d). Whereas previously the CBA was entitled to nominate representative of workmen on Board of Trustee of Provident Fund, Workers Profit Participation Fund and “any welfare institutions”. Now such entitlement has been restricted only to Provident Fund and WPPF.|
|22(14)||22(15)||This new subsection provides as under:“After an application under subsection (2) is made to the Registrar, 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.”This proviso has many serious, loaded implications. Such as:
(i) the certificate of CBA process may drag on and on (and we are familiar with situation where it dragged on for more than two years). The restriction on the employer shall remain for the entire duration.
(ii) the general tenor of such restrictions has been that employer shall not “discharge, dismiss or otherwise punish”. Departure has been made from it and now not only retrenchment, termination and removals but also transfers have been prohibited. It certainly requires serious attention by the employers.
|49(1)||NATIONAL INDUSTRIAL RELATION COMMISSION:This subsection deals with constitution of the Commission. New subsection (1) incorporates subsections (1) and (2) of the old ordinance with one change: whereas previously Commission was to consist of not less than 7 members including the Chairman it is now to consist of not more than 8 members including the Chairman.|
|(4)||(2)||No material change|
|(8)(a)||4(g)||This function is now stated to be as under:“Promote healthy trade unionism whether in establishment within a province or in more than one province and federation of such trade unions.”|
|(8)(b)||4(h)||From “promotion” the function of NIRC has been redefined as “facilitating” formation of federations at the National level.|
|(8)(d)||4(b)||In addition to performing functions of Registrar in respect of Industry wise Trade Unions, Federation of such trade unions, and federation at national level, NIRC has been given the function of carrying “out rating of the trade unions and federations registered by it in terms of there standing and representative character.”|
|(8)(f)||4(d)||No Material Change.|
|(8)(g)||4(e)||No change except for word “trade unions” words “collective bargaining agents and industry wise trade unions” have been substituted.A proviso has been added which reads as under:“Provided that, except during pendency of an industrial dispute the Commission shall not grant interim relief against any action mentioned section 63(d) of this Ordinance. “
This would mean that except when an industrial dispute is pending (whether in (i) bilateral negotiations or (ii) conciliation or (iii) arbitration or (iv) adjudication before (a) Labour Court (b) High Court) no stay order or any other relief against termination, dismissal, discharge or transfer or a disciplinary action can be granted.
|(8)(h)||4(f)||Words “and to apportion the cost thereof between the provincial and Federal governments, industry wise trade union, federation of such trade unions and federations at the national level, and the employers, in such manner as may be considered equitable by the Commission” have been deleted.|
BENCHES OF COMMISSION:
|(3)||(3)||No change except reference to Labour Appellate Tribunal has been deleted. However, no corresponding reference to High Court is made.|
|22-c||51||ADDITIONAL POWERS OF THE COMMISSION:There is only one change. Previously the punishment prescribed was “simple imprisonment” which may extend to six months of fine which may extent to two thousand rupees or with both.” Now the punishment has been substituted as “fine which may extent to forty thousand rupees”.This appears to be a policy shift on part of the government. Under the IRO, all punishment of imprisonments have been abolished and have been substituted by fines of substantially higher amounts.|
|(2)||(2)||It is now provided that on appeal the full bench shall have “power to confirm, set aside, vary or modify such award, decision sentence or order”. This phraseology though much simple does not in any way reduce any of the powers available to the full bench under previous phraseology.|
|22-E||53||FINALITY OR ODERS:
|22-EE||54||DETERMINATION ETC. OF COLLECTIVE BARGAINING UNIT:
|POWER TO MAKE REGULATIONS:Words “and the regulation shall have effect notwithstanding anything in consistent therewith contained in the Evidence Act, 1872 (I of 1872), the Court of Criminal Procedure, 1898 (Act V of 1898), the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the time being in force” have been deleted.|
|(2)||(2)||Clause (h) which states “fixing of placing and times of its sitting and deciding whether to sit in public or in private” has been deleted.|
|(23)||21||There is only one change. Whereas previously a CBA was required to maintain an account either with National Bank of Pakistan or with a Post Office Saving Bank, now it may maintain an account with a schedule bank or with a Post Office Saving Bank.|
|23(b)||Nil||WORKER PARTICIPATION IN MANAGEMENT:A joint work council has been created and this section has been deleted.|
|23(C)||Nil||JOINT MANAGEMENT BOARD:
A joint work council has been created and this section has been deleted.
|24(1)||24(1)||JOINT WORK COUNCIL:This subsection provides as under:“Every establishment which employs fifty persons or more, shall set up a Joint Works Council consisting of not more than ten members in which workers’ participation shall be to the extent of forty percent and the Convener of the Council shall be from the management.”
Previously three bodies were provided: (i) Management Committee under section 23-B, (ii) Joint Management Board under section 23-C and (iii) Works Council under section 24. Now only one body joint work council has been provided. Previously the representation of workers was 50% in a management committee, 30% in the Joint Management Board and 50% in the work council. It has now been fixed at 40% in JMC.
|24(2)||24(2)||The new provision reads as under:“The employer’s representatives on the Joint Works Council shall be from amongst the Directors or their nominees or senior executives and the worker’s representatives shall be the office bearers of collective bargaining agent or their nominees or from workers elected in the prescribed manner, in case there is no collective bargaining agent.|
|25||24(3)||Functions of JMC are a mixture of functions of three bodies and are as follows:(i) same as old 23-C(3)(a).
(ii) same as old 23-C(3)(e).
(iii) same as old 25(aa)
(iv) same as part of 25(b)
(v) same as part of 25(c)
(vi) same as part of 25(d)
(vii) same as part of 25(d)
|24(4 & 5)||These subsection which are almost identical to subsection 4 and 5 of section 23-C of IRO, 1969, provide as under:4. “The Joint Works Council may call for reasonable information about the working of the establishment from its management and the management shall supply the information called for.”5. “The Joint Works Council shall meet at such intervals as may be prescribed.”|
|25||Nil||This section provided for function of work council. It has been deleted and replaced by provisions of section 24 of IRO, 2002.|
|25-A(1)||40(1)||REDRESS OF INDIVIDUAL GRIEVANCES:No change except period for service of grievance notice has been reduced from 3 months to 1 month.|
|(2)&(3)||(2)||The only change is that whereas previously period of 7 days was prescribed where grievance was brought to the notice of the employer through Shop Steward or CBA and 15 days where the workmen himself brought the grievance to the notice of the employer, now a uniform period of 15 days has been prescribed.|
|(4)||(3)||Whereas previously words |or, as the case may be, the collective bargaining agent, may take the matter to Labour Court” have been omitted.|
|(5)||This new subsection reads as under:“The Labour Court, in case the termination of services of a workman is held to be wrongful, may award compensation equivalent to not less than twelve months and not more than thirty months basic pay last drawn and house rent, if admissible, in lieu of reinstatement of the worker in service.”This provision needs a closer examination. Points to be noticed are:
(i) Though a discretion is vested in the Court, to award compensation, the court cannot exercise it arbitrarily or capriciously. It must do so for reasons and just like every other set of reasons, such reasons would be justifiable and appealable.
(ii) It is to be noticed that compensation is to be in lieu of reinstatement. Thus if an employee is entitled to back benefits compensation cannot be in lieu of back benefits.
|(8)||(6)||The provisions are identical except period for implementation of order of Labour Court, in cases where no period has been prescribed by the Labour Court in the order itself, has been increased from 7 days to 1 month.|
|(9)||(7)||This subsection has been totally recast. It now reads as under:“No person shall be prosecuted under subsection (6) except on a complaint in writing by a workmen if the order or decision in his favor is not implemented within the period specified therein”.Previously where the period was specified in the order, prosecution could be initiated on a complaint by the worker and where no period was specified on a complaint by the Labour Court or Tribunal. Such distinction has been done away with.|
|(26-1)||25(1)||NEGOTIATIONS RELATING TO DIFFERENCES AND DISPUTES:The provisions are almost identical except previously communication could be sent to works council. All references to works council have been deleted.|
|(26-2)||25(2)||While period of bilateral negotiations has been increased from 10 to 15 days and references to works council have been deleted, the provision remains the same.|
|26(3)||25(3)||There are three changes:(i) reference to works council have been deleted.(ii) previously the terminology was “noticed of strike” or “notice of lockout”. Now they have been replaced by “notice of conciliation”.
(iii) the period for service of such notice has been increased from 7 days to 15 days.
|27(3)||Nil||This sub section as well as the succeeding subsection deal with the Board of Conciliation. They provide as under:3. “A tripartite Board of Conciliators, hereinafter called the Board, consisting of men of standing competence shall be appointed on the request of the party raising the dispute, by the Federal Government or by a Provincial Government, as the case may be, by notification in the official Gazette, to conciliate in an industrial dispute involving more than one establishment in a Province or in an industry at national level or in an industrial dispute of national importance, if the negotiations are not satisfactorily progressing.4. “The Board constituted under sub-section (3) shall stand dissolved on the settlement of dispute or on the failure of conciliation proceedings.”|
|28||27||PERIOD OF NOTICE OF CONCILIATION:
While terminology has been changed to notice of conciliation, period has been increased from 14 days to 15 days.
|29||28||CONCILIATION AFTER NOTICE:There is no change except terminology has been change to notice of conciliation.|
|30||29||PROCEEDINGS BEFORE CONCILIATOR:No change except reference is also made to the Board.|
|31||30||ARBITRATION:Except that the words “federal government” has been added in subsection (4) there is no change.|
|32(1)||31(1)||STRIKE AND LOCKOUT:The subsections are identical except under the Ordnance of 2002 the worker right to go on strike after no settlement is arrived at during the course of conciliation proceedings and the parties do no agreed to refer the dispute to arbitration is now made subject to a seven days notice to the employer.|
|(2)||(3)||Under this subsection the power to ban the strike arises after 30 days. Period of 30 days has been reduced to 15 days. It is pointed out that power under the proviso in cases of strikes or lockout causing hardship to the community or prejudice to the national interest remains unchanged. A second proviso has been added which is as follows:“Provided further that the federal government or a provincial government, as the case may be, shall prohibit by an order in the official Gazette, the commencement of strike or lockout, as the case may be if the same in the opinion of the Government concern, is detrimental to the interest of the community at large.It appears that a duty has thus been cast on the government.|
|33||32||STRIKE OR LOCKOUT IN PUBLIC UTILITY SERVICES:There are two changes:(i) Previously section 33 dealt with public utility services as well as industrial disputes of national importance. Now section 32 deals with only public utility service.
(ii) Previously there was clear indication as to cases in which Federal Government could and in cases which provincial government could intervene. Now though power of intervention has been given to both the governments, respective areas have not been prescribed meaning thereby that the power is concurrently available to both the governments.
|34||33||APPLICATION TO LABOUR COURT:
|34-A||56||RAISING OF INDUSTRIAL DISPUTE BY A FEDERATION:
|35(1)||44(i)||LABOUR COURTS:Constitution of Labour Court has been made conditional. The provincial government can do so only “in consultation with the Chief Justice of the respective High Court”. If the word “consultation” is given the meaning which was assigned to it in judges case (which it must be) the opinion of the Chief Justice will be almost binding on the provincial government.|
|(2)||(2)||Appointment of presiding officer must now be in consultation with the Chief Justice of respective High Court.|
|(3)||(3)||Additional district judges are no longer qualified to be presiding officers.Proviso relating to appointments in Balochistan has been omitted.|
|36||45||PROCEDURES AND POWERS OF LABOUR COURT:
|37||47||AWARDS AND DECISIONS OF LABOUR COURT:There is no change except now appeal lies to the High Court.|
|38(1)||48(Nil)||APPEALS TO THE HIGH COURT:Subsection (1) of IRO, 1969 relating to establishment of Labour Appellate Tribunals has been deleted. Thus Labour Appellate Tribunals stand abolished.|
|(2)||Nil||This provision relating to qualification of the Tribunal has been consequently deleted.|
|(3)||(1&2)||There is no change except instead of Labour Appellate Tribunals appeal is provided to High Court and second sentence of subsection (3) has been included as subsection (2) of the Section.|
|3||This section relating to power of revision has not undergone any change except instead of Labour Appellate Tribunal, power is given to the High Court.|
|(4)||Nil||This subsection which provided that “the Tribunal shall follow such procedure as may be prescribed” has been deleted.|
|(5)||(4)||This subsection which conferred power on the Tribunal to punish for its contempt and for contempt of Labour Court has been retained with two changes: Firstly the power now vests with the High Court being the Appellate Court and secondly, it is made “subject to Appellate Jurisdiction” of High Court.|
|(6)||(5)||This subsection relates to Appellate jurisdiction in case of sentence for contempt passed by the High Court. It provides as under:“any person if sentenced with a fine exceeding twenty thousand rupees by a single bench of a High Court under subsection (4) may prefer an appeal to the Division Bench of that Court.|
|(7)||(6)||No change except High Court substitutes Labour Appellate Tribunal.|
|(8)||(7)||There is no change in this subsection except period of twenty days where a stay order suspending operation of reinstatement order is granted by a Court has been increased to 60 days.The proviso which provided for vacation of stay order upon expiry of 20 days has been deleted.|
38-A to 38-1
|(Nil)||WAGE COMMISSIONAll these sections related to Wage Commissions. They have been deleted.|
|39||59||SETTLEMENT AND AWARDS ON WHOM BINDING:
|40-1||60(1)||EFFECTIVE DATE OF SETTLEMENT AWARDS ETC.
No material change.
|(2)||(2)||Period of one year in case of settlement in which no period is agreed upon has been increased to two years.|
|(3)||(3&4)||There is no change except second sentence has been made subsection (4).|
|(4)||(5)||No change except reference to Tribunal has been replaced by High Court.|
|41||34||COMMENCEMENT AND CONCLUSION OF PROCEEDINGSNo change.|
|42||75||CERTAIN MATTERS TO BE KEPT CONFIDENTIAL:References have been made to High Court and the Board of Conciliators and reference to “Labour Appellate Tribunal” has been deleted.|
|43||35||RAISING OF INDUSTRIAL DISPUTES:
|44||36||PROHIBITION ON GOING ON STRIKE OR DECLARING LOCK OUT WHILE PROCEEDINGS PENDING:This is a new addition. It provides a under:“No party to an industrial dispute shall go on strike or declare a lock out while any conciliation proceedings or proceedings before an arbitrator or a labour court is pending in respect of any matter constituting such industrial dispute.”
Previously there was restriction of service of notice of strike or lock out. Now it has been made applicable only to strikes and lock outs.
|45||37||POWER OF LABOUR COURT AND APPELLATE COURT OF COMPETENT JURISDICTION TO PROHIBIT STRIKE:There is no change in this section except reference is made to the High Court instead of Labour Appellate Tribunal.|
|46||38||ILLEGAL STRIKES AND LOCK OUTS:
|46-A||39||PROCEDURE IN CASES OF ILLEGAL STRIKES AND LOCK OUTS:
|47||40||CONDITIONS OF SERVICE TO REMAIN UNCHAGED, WHILE PROCEEDINGS PENDING:There is no change in this section except reference to the Tribunal has been omitted and in its place reference to High Court has been made and since provision regarding Board of Conciliators have been made reference is made to proceeding before it also.|
|47-A||41||REMOVAL OF FIXED ASSETS:
|48||42||PROTECTION OF CERTAIN PERSONS:
There is no change except second sentence of subsection (2) has been included as subsection (3).
|49||43||REPRESENTATION OF PARTIES:While subsection (1) and subsection (3) have remained unchanged, in case of subsection (2) which deals with representation before a conciliator whereas previously it was stated that no party shall be entitled to be represented by a legal practitioner it is now provided that no party shall be represented by a legal practitioner.|
|50||61||INTERPRETATION OF AWARDS AND SETTLEMENT:No change except power to interpret, with abolition of Tribunals, lies with High Court.|
|51||62||RECOVERY OF MONEY DUE FROM AN EMPLOYER UNDER SETTLEMENT OR AWARD:No change except reference to Tribunal is substituted by reference to High Court.|
|52||22||PERFORMANCE OF FUNCTIONS PENDING ASCERTAINMENT OF COLLECTIVE BARGAINING AGENT:No change.|
|53||65||PENALTY FOR UNFAIR LABOUR PRACTICE:All penalties of imprisonment have been abolished by IRO 2002 and fines have been substantially enhanced. In this case fine range from a maximum of twenty thousand to a maximum of fifty thousand. It is pointed out that in all these cases a sum is stated as fine and there is no statement that this is the maximum. Therefore where the court comes to the conclusion that the person is guilty it can award only one punishment i.e. the prescribed fine.|
|54||66||PENALTY FOR COMMITING BREACH OF SETTLEMENT:Fine of twenty thousand rupees is prescribed as penalty. It is point|
|55||67||PENALTY FOR FAILING TO IMPLEMENT SETTLEMENT:It is now twenty thousand rupees with five thousand rupees for each day of continued failure.|
|56||68||PENALTY FOR FALSE STATEMENT ETC.:The fine in this case is rupees ten thousand.|
|60||69||PENALTY FOR OFFENSES UNDER SECTION 40:The penalty prescribed is rupees twenty thousand.|
|61||70||PENALTY FOR EMBEZZLEMENT OR MISAPPROPRIATION OF FUNDS:The penalty is doubled the amount embezzled.|
|62||71||PENALTY FOR OTHER OFFENSES:The penalty is five thousand rupees.|
|62-A||72||OFFENSES TO BE NON COGNIZABLE:
|63||73||OFFENSES BY CORPORATION:
|64||74||TRIAL OF OFFENSES:For words ” (Court) of a magistrate of first class” words “any other Court of competent jurisdiction” have been substituted.|
|65-A||77||REGISTRAR ETC. TO BE PUBLIC SERVANTS:No change except reference to Tribunal has been deleted.|
|66||79||POWER TO MAKE RULES:(i) Reference to Wage Commission has been deleted.(ii) In subsection (2) it has been added that “provided that such rules (i.e. rules made by the provincial government) shall not be in consistent with the rules made by the Federal government on subsection (1)”.|
|67||80||REPEAL AND SAVINGS:(i) Clause (1) now states that “the Industrial Relation Ordinance, 1969 (XXXIII of 1969) is hereby repealed.(ii) Subsection (2) reads as under:
(i) every trade union existing immediately before the commencement of this Ordinance, which was registered under the repealed Ordinance shall be deemed to be registered under this Ordinance and its constitution shall continue force until altered or rescinded.
(ii) Anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given proceedings commenced or other actions taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provision of this Ordinance; and
(iii) Any document referring to the repealed Ordinance relating to industrial relations shall be construed as referring to the corresponding provisions of this Ordinance.
(iv) The appeals pending in the Labour Appellate Tribunals shall stand transferred to the respective High Courts from the date of commencement of this ordinance and it shall not be necessary for the High Court or recall any witness or to record any evidence that may have been recorded.
|81||FORMER REGISTRATION OFFICES, OFFICERS, ETC. TO CONTINUE:(i) The offices existing at the commencement of this Ordinance for registration of trade unions shall be continued as if they had been established under this Ordinance.(ii) Any person appointed to any office under, or by virtue of the provisions of the repealed Ordinance shall be deemed to have been appointed to that office under or by virtue of this Ordinance.
(iii) Any books of accounts, book, paper, register or document kept under the provisions of the repealed Ordinance relating to companies shall be deemed to be part of the books of accounts, book, paper, register or document to be kept under this Ordinance.
|82||REMOVAL OF DIFFICULTIES:If any difficulty arises in giving effect to any provisions of this Ordinance, the Federal Government may, by notification in the official Gazette, make such order, not inconsistent with the provisions of this Ordinance, as may appear to it to be necessary for the purpose of removing the difficulty; Provided that no such power shall be exercised after the expiry of two years from the coming into force of this Ordinance.|
|83||OBSERVANCE OF WORKERS AND EMPLOYERS RECIPROCAL RIGHTS AND OBLIGATIONS:(i) Notwithstanding anything contained in the foregoing provisions of this Ordinance and any other law in force, workers and employers of an establishment or the industry shall respect each other’s rights and promote the interests of their enterprise for reasonable return on investments and for its expansion and growth.(ii) The rights and duties of workers and employers shall be such as given in Schedule II and as may be prescribed.
(iii) Workers and employers both shall promote and foster an atmosphere of mutual trust, confidence, understanding and cooperation and shall make every effort to avoid conflict or dispute amongst them and resolve their differences, if any, through bilateral dialogue and shall strive to develop good industrial relations for the efficiency and increased output of the enterprise.
(iv) Workers and