SINDH INDUSTRIAL RELATIONS ACT 2013
Inconsistencies,
Anomalies & Omissions
By:
MAHMOOD
ABDUL GHANI
Advocate Supreme Court of
In March 2013 whilst the Sun was setting, our elected
representatives moved a Bill in the Provincial Assembly of Sindh
which reads as under:-
“After the
Eighteenth Amendment in the Constitution of Islamic Republic of Pakistan, 1973,
subject “Labour” has been devolved to the
Provinces. To regulate the formation of
trade union, regulation and improvement of relation between the Employer and
Workman, it is expedient to enact a Provincial Law in the subject matter.”
With such awakening, a Law was moved in the Provincial
Assembly of Sindh and was enacted as such by the
Assembly without any discussion and passed the same day. Subsequently it even received accent of the
Governor of the Province. On
In terms of Section 3 of the Act, in short SIRA 2013
it is mentioned that it will apply to all persons employed in any establishment
or industry including fishing and agriculture.
Unfortunately, Livestock, Cattle, Sheep and Poultry Farming and
In Section 2 of the Act which defines certain terms
used in the Act, the concept of Collective Bargaining Unit has been
introduced. Such a concept is
understandable in legislation which are
trans-provincial in nature, subject to Article 144 of the Constitution but its
insertion in Section 2 of the said act will add to further chaos and
confusion. Section 2 (viii) has defined
the term ‘employer’ as any person who employs workmen under a contract of
employment and includes any person responsible to the management for
supervision and control of the establishment.
It appears that Provincial Legislators have not even considered the
definition of the term ‘employer’ as given in Section 2 (ix) of IRA 2012
promulgated by the Federal Government and published on
Section 2 (xv) has defined the term ‘industrial
dispute’ as meaning any dispute or difference between employer and employer or
between employer and workman and between workman and workman which is in
connection with the employment, non employment, terms of employment or
conditions of work. Needless to mention
that ever since the concept of Collective Bargaining Agent found judicial
recognition, and incorporated in IRO 1969, and thereafter, it has consistently
been held, including Section 53 of present Sindh
Industrial Relations Act 2013, that no industrial dispute shall be deemed to
exist unless it has been raised in the prescribed manner by CBA or an
employer. The definition of the term
‘industrial dispute’ in Section 2 (xv) is thus, not only in conflict with
Section 53 of the said Act but with the other provision of Sindh
Industrial Relations Act 2013. We cannot
conceive of an industrial dispute between employer and employer or between
workman and a workman. There also cannot
be industrial dispute between an employer and workman, for it is a trade union
which is determined and certified as CBA and not a workman. The correct definition of the term
‘industrial dispute’ under the circumstances should have been as follows:-
“Industrial
dispute means any dispute or difference between CBA and employer which is
connected with the employment, non employment, terms of employment or the
conditions of work of workman and is not in respect of a pre-determined or
pre-existing right guaranteed or secured either to the CBA or employer by, or
under any law, settlement or award, for the time being in force.”
The term ‘industry’ has been defined in Section 2
(xvi) to mean any business, trade and manufacture, calling, service including
fishing, mining and agriculture and installation, exploration, processing,
printing and electronic media, employment or occupation of producing goods and
services for sale other than those set up for charitable purposes. No doubt this definition is improvement over
the earlier definition of the term ‘industry’.
Still further the concept of industry under Labour
Jurisprudence is economic activities of producing goods and material
services. Here once again although
fishing and agriculture has been included in the definition of the term
‘industry’, yet poultry farming, livestock has been overlooked. Same needs to be incorporated in the said
definition.
The term ‘lock-out’ has been defined in Section 2
(xix) of SIRA Act 2013 to mean closing of place of employment or part of such
place, suspension of whole or part of work by an employer, refusal absolute or
conditional by employer to continue to employ any number of workman, when such
closing, suspension or refusal is in connection with an industrial dispute or
is intended for purpose of compelling workman to accept certain terms and
conditions of or effecting employment.
Once again this definition is far-fledged and confusing. Termination of service,
even if, wrongful is not a lock-out.
The definition of the term lock-out should thus be as under:-
“Lock-out
means closing of the place of employment or part of such place, suspension
wholly or partly of work by an employer, refusal absolute or conditional by
employer to continue to employ any employee by him except a workman discharged,
dismissed, or otherwise terminated from service or who has retired or has
reached the age of superannuation or otherwise severed all his connection with
his employer, when such closing, suspension or refusal occurs in connection
with an industrial dispute or is intended for the purpose of compelling such
person employed to accept certain terms and conditions or effecting employment.
The term ‘office bearer’ has been defined in Section 2
(xx) to mean in relation to trade union, any member of the executive but does
not include an auditor or legal advisor.
It should be further provided in this definition that a person will not
be treated as an office bearer of the union if he is not a workman or still
further full time paid trade unionist within the limits of law. This will go a long way to eliminate mushroom
growth of trade unions in this country and exploitation of workers by political
party and or those who are neither workman in the establishment with which
trade union is formed and will eliminate, in due course of time, professional labour leaders out to exploit workers and also eliminate
those persons who are not enrolled as Advocate within the meaning of Labour Practitioner and Bar Council Act, 1973.
The term ‘strike’ has been defined in Section 2 (xxix)
to mean cessation of work by body of person acting in combination and concerted
refusal or refusal under common understanding of any number of persons so
employed to continue work or accept employment.
This definition is also defective.
The term ‘strike’ as defined in the Act gives an impression that even if
there is five percent of the normal work, it will not constitute a strike. The suggested text of the definition of the
term ‘strike’ should thus be as under:-
“Strike
means cessation of work, absolute or partial, by body of persons employed in
any establishment or part thereof, acting in combination either wholly or
partly or concerted refusal wholly or partly under a common understanding of
any number of persons, for any duration of time who have been or employed to
continue to work or to accept employment.”
The term ‘settlement’ in Section 2 (xxviii) has been
defined to include a settlement between employer and his workman. Repeatedly it has been pointed out that only
a CBA can raise an industrial dispute and an employer is only required to
conclude settlement with the CBA and not with a workman. The suggested text of the definition of the
term settlement thus should be as under:-
“Settlement
means a settlement arrived at in course of conciliation proceedings and
includes an agreement between employer and CBA arrived at otherwise than in the
course of conciliation proceedings, where such agreement is in writing and has
been signed by the parties thereto, in such a manner as may be prescribed and
copy thereof has been sent to the Government of Sindh,
Conciliator and such other persons as may be prescribed.”
The term ‘Trade Union’ as defined in Section 2 (xxx)
also includes combination of employers.
The concept of a trade union as developed over the years through Labour Jurisprudence is combination of workman to have
their rights enforced against employer once the said union is determined as
CBA. The definition of the term ‘Trade
Union’ should thus be as under:-
“Trade
Union means any combination of workers or workman formed primarily for the
purpose of further regulating and defending the interest and rights of workman
in any industry or establishment or apart
thereof and includes a Federation of two or more than two of such Trade Unions.”
Finally the term ‘worker’ and ‘workman’ has been defined in Section 2 (xxxii) of the Act. Present definition provides that a person not
falling within the definition of employer is a workman. This is not the concept developed in Labour Jurisprudence.
There can be a situation where there is an employer,
workman and person employed who is neither an employer, nor a workman. The suggested text of the definition of
‘Worker’ or ‘Workman’ should therefore be as under:-
“A worker
and workman means any person employed in any establishment or part thereof or
in any industry, to do skilled or unskilled, manual or clerical work as his
main and primary duty for remuneration or reward employed by the employer other
than a person employed by the contractor where terms of employment be expressed
or implied and for the purpose of this Act does not include any person working
in the managerial, administrative, directional, controlling or in a supervisory
capacity working either in the establishment or any part thereof.”
Section 3 of the Sindh
Industrial Relations Act 2013 provides for Trade Union and Freedom of
Association. This provision of law has
recognized Freedom of Association as enshrined in Article 17 of the
Constitution of Pakistan, 1973 read with ILO Convention 87 and 98 which
provides for Freedom of Association and Right to Organize Collective
Bargaining. This provision of law is
thus in conflict with Section 1 (3) of the Sindh
Industrial Relations Act 2013 which specifically excluded large category of
employees from the ambit of Sindh Industrial
Relations Act 2013. However, a welcome
feature of proviso to Section 3 (i) is that in
establishment where women are employed, trade union shall include women in the
executive of the said Trade Union in the same proportion as employed in the
establishment. The law no doubt provides
that every Trade Union shall frame its own Constitution but there is no
provision incorporated in Section 3 of the Act to the effect that the Union
shall be duty bound to provide copy of the Constitution with all amendments
made there from time to time duly approved by the Provincial Registrar of Trade
Unions to the employer. This is
necessary to ensure that Trade Union functions not only within the ambit of law
but also within the ambit of registered Constitution of the
Section 4 of the Sindh
Industrial Relations Act 2013 provides that any Trade Union under the
signatures of its President and Secretary can apply to the Registrar of Trade
Unions for the Registration of Trade Union under this Act. Conciliation, Registration of Trade Union and
Registration in respect of factory under the Factories Act are the three main
functions presently being performed by the Provincial Directorate of labour. Each of
these functions presently are under the overall
control of one Director of Labour. In order to ensure registration of union,
conciliation proceedings and registration and inspection of factories are
separately and independently performed, there must be devolution of power. This will, to a large extent control the
present unbridled, arbitrary and discretionary powers available with the
Director of Labour in the Province. Thus conciliation, registration of trade
union and registration and inspection of Factories be separated each under
separate Director, who will be directly responsible to the Secretary Labour of the Province.
Section 6 of the SIRA 2013 in terms of Section 6 (1)
(d) provides that number of persons forming Executive shall not exceed
prescribed limit and shall include not less than eighty percent from amongst
workmen actually engaged or employed in the establishment or group of
establishment or industry for which trade union has been formed. Earlier outsiders
condition was seventy five percent. If
intention of the legislature is that eighty percent of the Executive of a union
should be worker in the establishment and rest of twenty percent outsiders be
anyone, then such interpretation can possible lead to a situation where
employer will treat himself as an outsider in the twenty percent quota and hold
office either of the President or General Secretary of the Union in his
establishment and thus defeat and frustrate very purpose and essence and spirit
of formation of trade union. Needless to
mention the General Secretary alone can serve charter of demands, raise industrial
dispute and conclude settlement. He
alone can initiate proceedings either in the
Section 7 of the Act provides for disqualification for
being office bearer of a trade union.
This law provides that a person who has been convicted of offence under
Section 70 or heinous offence under Pakistan Penal Code shall be disqualified
from being elected as or from being
office bearer of a trade union. This
means that even if a worker has been dismissed from service on gross acts of
misconduct like assaulting his superior, resorting to illegal strike or
slowdown in work, committing theft, fraud and defalcation of money can still,
notwithstanding his case being dismissed by the court of law, can nevertheless
claim entitlement to be elected an office bearer of the union in the twenty
percent outsiders quota. High Court of Sindh and
Section 9 of the Act deals with
registration of the union. This provision of law leaves it exclusively
to the subjective satisfaction of Registrar with no outside interference in
matters pertaining to registration of union.
Such registration of union should be after due diligence where
employer’s assistance be also availed to the extent of claim made by the
applying union. The functions of Registrar of Trade Unions is quasi
judicial. He has to pass speaking order
either whilst effecting registration of a trade union or even whilst refusing
to register trade union being a public functionary. Being Judicial Officer, he should not be a
part of the Executive, which deals with either conciliation proceedings or even
registration of a factory and inspection of factories.
Furthermore in terms of Section 10 of SIRA 2013 right
of appeal to the
The law pertaining to cancellation of registration of
a union is incorporated in terms of Section 12 of the said Act. It is provided that if a union contravenes or
has been registered in contravention of any of provisions of the Act or rules
framed there under or if a trade union contravenes any of the provision of its
Constitution or otherwise made in its Constitution any provision which is
inconsistent with the Act, then registration of such union is liable to be
cancelled. No doubt in terms of Section
11 it is provided that certificate of registration of trade union is a conclusive evidence that it is registered under the
Act. However, this provision only raises
a presumption. The presumption is
restricted and confined only to registration of a union, and it is not to be
extended to the presumption that such registration has been effected
in conformity with law or that it could not be challenged before any other
judicial forum. Such a challenge can
only be possible, if Registrar passes a speaking order giving reasons and
grounds for registration of the union and or refusal to register a trade union
and also if employer is associated in matters pertaining to registration of
such union. As a necessary corollary it
follows that unfortunately Section 12 of the SIRA 2013 only empowers Registrar
of Trade Union and no one else to apply to the
Section 13 of SIRA 2013 provides that a trade union
aggrieved by order of the
Section 14 of SIRA 2013 provides that Government shall
appoint as many persons as Registrar and even appoint more than one Registrar
for any particular area. There is no
provision in law that the Government should appoint such Registrar Trade Union
in consultation with Chief Justice of the High Court of Sindh. Such appointment of a Registrar Trade Union
presently is in violation to the recent judgment of the Supreme Court of Pakistan in C.P. No.
53/2007 titled Shaikh Riaz-ul-
Haq, Advocate Supreme Court vs
Federation of Pakistan where the Apex Court relying on Al-Jehad
Trust case (PLD 1996 SC 324) and Mehram Ali case (PLD
1998 SC 1445) has made consultation mandatory and present provision in law is not
in accordance with the Constitution of Pakistan and decisions of Apex
Court. No criteria as
to the said Registrar having any minimum educational qualification, including
that of law, has been provided in Section 14 of the Act. In due course of time quo-warranto
petitions are liable to be filed against such appointment of Registrar Trade
Union, hence urgency to amend law accordingly.
Section 15 of the SIRA 2013 provides for power and
functions of the Registrar of Trade Unions.
In terms of Section 15 (2), the Government has been conferred power to
authorize Registrar even to register an industry wise trade union and
federation at the provincial level. The
term ‘industry wise trade union’ has not been defined in SIRA 2013. However, Section 2 (xviii) of IRA 2012 has
defined ‘industry wise trade union’ as meaning a trade union having its
membership in more than one province in a group of establishment owned by one
employer. This provision of law is ultra
vires and the principle laid
down by the
Section 16 of the Act provides for incorporation of a
registered trade union and mentions that every registered trade union shall be
a body corporate by the name under which it is registered. It has been observed that there are certain
multinational organizations who have their name
registered and incorporated as an international Trade Mark. Use of that Trade Mark is only restricted and
confined to be used by the body in whose favour such
a registration has been effected. Using that name and associating it with the
name of a trade union is a direct infringement of Registration, Patent and
Trade Mark law. This aspect of the
matter needs serious reconsideration, as of late large number of multinational
organizations have taken exceptions to the use of their registered patent and
trade mark name to be used unauthorisedly by the
trade union applying for registration or functions of a trade union in any
organization or establishment as the case may be associating use of such
registered Trade Mark with the union.
Section 17 and 18 of the Act deals
with unfair labour practice on the part of the
employer and workman. This phrase “Unfair Labour
Practice” is a part of the wider subject on industrial relations and is very
flexible and capable of being stretched far too wide or limited within narrow
confinement. This problem is delicate
and difficult to be dealt with. Unfair labour practice concept arose out of a struggle waged by
trade unions and unfair labour practice is on the
part of employer is provided so as to remove hurdles and obstacles in the free
formation, registration and functions of a trade union and right to bargain
collectively. Invariably this concept of
unfair labour practice, although in existence, even
in the Trade Unions Act 1926 as adopted in
Section 24 of the Act provide for concept of
Collective Bargaining Agent. It is
provided that if there is only registered trade union in any establishment or a
group of establishment that trade union if it has not less than one third of
the total number of workers employed in such organization, be certified as CBA,
upon an application made in this behalf by the RTU as CBA. This provision of law is not happily
worded. An impression is gathered
that if once trade union is registered
and certified as CBA and there is no other trade union in the establishment,
then for an indefinite period and or for all times to come thereafter, the said
union shall be treated as CBA.
Furthermore there is nothing in law to suggest that one third of the
total number of workman concept should be ascertained by Registrar, only once
at the time of CBA certification or after every two years, as we cannot rule
out the possibility that the only registered trade union in the establishment
on the eve of applying for CBA certificate had one third of total number of
workmen employed in the establishment as its members but thereafter after a
lapse of two years it had less than one third of the total number of workmen in
the establishment as its members. It is
therefore incumbent that just as certificate of CBA is valid for two years if
it is determined on the basis of secret ballot in establishment with more than
one union, such CBA certificate be for two years, much in the same way, even if
there is only one registered trade union, certificate should be for two years
and thereafter on expiry of the said term, the union should again apply to
register trade union, claim and establish more than one third of the total
number of workman employed in such establishment to be its members and obtain a
fresh certificate of CBA from Registrar.
Amendments in law be thus made. Presently, there are in certain
establishments, more than one registered trade unions, yet first union having
obtained certificate of CBA more than 30 to 35 years back continue to claim the
said status of CBA and the Registrar is indifferent to such claim, whereas
there is no provision in the law which entitle the employer to challenge such a
situation except to institute Constitution Petition in the High Court. The law in terms of Section 24 (6) provides
that the employer is required to provide list of workmen not less than three
months in service and other details for determination of CB, but provide that
it is the function of a trade union claiming status of CBA. The employer, under
no circumstances be expected or required to bear any expenses for the conduct
of such ballot for determination of CBA, between the unions. The term for such
CBA should be two years and every Registrar must ensure that within one week of
the expiry of the term of such a CBA, a fresh ballot is conducted so that there
is no vacuum, and industrial relations is not jeopardized and industrial peace
and harmony is maintained. Leo Tolstoy,
the Russian Writer has rightly said: “We lost because we told ourselves we
lost.”
Section 27 of SIRA 2013 provides for union deductions
by way of check-off at source, by the employer and paid in the accounts of the
union to be maintained with the branch of National Bank of Pakistan, Sindh Bank, Post Office or any Saving’s Bank.
If Trade Unions in this country are to survive financially, unions
subscription should be a voluntarily act of the members to pay union
subscription directly to the Unions.
Under no circumstances employers should be associated to act as an agent on behalf of
the CBA to deduct from the wages the subscription and deposit the same in the account of the Union The law which provides for
union subscription is altogether silent about collections of union
directly made illegally by the Union, without giving any receipt to its members
for the purpose of pursuing litigations
in the Court, paying fee to the counsel or Labour
Leader and collecting money to prolong, in most cases, illegal strikes and for perpetuating Gherao
and Dharna , all of which are not recognized in
law. No efforts whatsoever has been made to ensure that the
collected union subscription are
strictly streamlined and utilized through legislative means and under no
circumstances subscription given by the workers are to be utilized for unlawful means in negation to good labour management relations.
The condition that CBA should only maintain the
account with a branch of NBP or Sindh Bank is not
fair. All Banks are registered with
State Bank of Pakistan and it should be open for the union to request the
employer and provide them with the name of the branch of the Bank of their
choice where union deductions is to be effected assuming the Government
maintain that the employer deduct the payment from the wages of the workers.
In terms of Section 28, 29 & 30 of SIRA 2013,
provisions have been made for Shop Steward, Workers Management Council and
Workers Participation in Management.
Unfortunately, over the past four decades, none of these bodies
have been instrumental or played
an effective part in bringing about industrial peace and harmony for better relationship between employers and
employees. Rather it is creating a new breed of persons who
claim to be a member of these bodies
and therefore exempt from performance of
their normal duties and claim full salary and benefits from the employers. These are institutions more for paper reading
rather than making effective contribution towards labour
management relationship
and by misuse of these
provisions of law, unfair bad labour practice both on the part of the employer and workmen
are encouraged.
Section 34 of the SIRA 2013 deals
with redressal of individual grievance. The grievance
should be restricted to pre-determined or pre-existing rights guaranteed or
secured right of an individual worker.
Furthermore Section 34(7) provides that
“In
enforcing pre-determined and pre-existing right guaranteed to an individual
worker, the Labour Court shall go into all the facts
of the case and pass such orders as may be just and proper in the circumstances
of the case.”
Furthermore in terms of Section 34 (10), it is
provided that workers having common grievances arising out of common cause of
action may make a joint application to the
Section 35 of the Act deals with negotiation relating
to the industrial dispute either raised by the CBA or employer. Sub clause 3 of Section 35 refers to ‘failure
of bilateral negotiations’. Experience
has shown that invariably there is nothing on record to indicate failure of
such bilateral negotiations. It should
either be incorporated in the law that either CBA or employer has confirmed
failure of bilateral negotiations in writing or even if employer feels that
further bilateral negotiations continue but the CBA is of the view that no
useful purpose will be served by continuing with bilateral negotiations, there
must be some positive indication in writing incorporated in clear terms the
intention of CBA to declare bilateral negotiation of failure so that
appropriate notice of strike or lock-out may be served by the CBA or the
employer as the case may be.
Section 39 of SIRA 2013 deals with
conciliation proceedings, whereas Section 40 of the said Act deals with
Arbitration. It provides that after conciliation fail,
Conciliator shall try to persuade the parties to refer the dispute to an
Arbitrator. There is nothing on record
to show any form to be framed in the Regulation under the said Act as to the
contents and ingredients of such failure of conciliation or arbitration.
Section 41 of SIRA 2013 that if no settlement is
possible, the workers may go on strike, or employer
declare a lock-out. It is essential that
there should be something on record to indicate failure of conciliation
proceedings. In the repealed IRO 1969 and the rules framed there under, it was
specifically provided that failure of conciliation proceedings will be in terms
of certificate format where was provided in the Industrial Relations (Sindh) Rules. There
is no such provision in law leading to the inference on the one hand by a claim
on the part of the CBA that conciliation and arbitration efforts have failed,
whereas the same being denied by the employer to the effect that it has not
been failed. The
Section 42 of the SIRA 2013 deals with strike and
lock-out in public utility service. List
of public utility service as incorporated has been identified in the Schedule
attached to the said Act. Whereas right
to form Association including
Trade Union is a Fundamental right, the guarantee in terms of
Article 17 of the Constitution of Pakistan is limited. Right to strike is not a Fundamental
Right. This right to strike is available
under one of ILO Convention ratified by
Section 43 of SIRA 2013 provides for application being
moved to the
“Any CBA or
any employer may apply to the
Section 45 of SIRA 2013 provides for appointment of
Presiding Officer of Labour Court. Unlike provision of IRO 2002 where such
appointment of a Presiding Officer of Labour Court
was to be made in consultation with Chief Justice of Sindh
High Court, no such provision exists in the present law. This is in negation to the recent judgment of
the Supreme Court of Pakistan in Civil Petition No. 53 of 2007 titled Shaikh Riaz-ul-Haq, Advocate
Supreme Court vs Federation of Pakistan. Labour Court Judge are District Judge.
Their appointments should be in consultation with the Chief Justice of Sindh High Court.
Furthermore only Senior District & Session Judge be
appointed Presiding Officer of the
Section 46 of SIRA 2013 provides for procedure and
power of
Section 47 of the Act provides that award or a
decision of the
Labour Appellate Tribunal are to be
constituted by the Government of Sindh through
Notification in terms of Section 48 of SIRA 2013. Under IRO 1969 the Judge of the Labour Appellate Tribunal was identified as a Chairman,
whereas now he is identified as Member.
It is recalled mentioned that more than one Tribunal may be constituted
in the
It has been noticed in SIRA 2013, as was also earlier
incorporated in the other earlier Industrial Relations Law, that only a party
raising industrial dispute may not resort to strike or lock-out on failure of
conciliation and only side rising the demand may approach the Labour Court and may
refer the matter to Labour Court for adjudication. This country has passed through crisis over
the last few years. We cannot afford luxury either of strike or lock-out. It
should therefore be incorporated in the law that notwithstanding the fact that
the employer or the CBA has raised industrial dispute, on failure of
conciliation proceedings any party to the said dispute may apply to the
Section 52 of the SIRA 2013 provides that certain
matters are to be kept confidential. It
is provided that there shall not be included in any written award or decision
any information obtained either by the Registrar, Conciliator, Labour Court, Arbitrator or Tribunal in the course of any
investigation or enquiry as to trade union or as to any individual business,
expect where a request in writing is made so as to treat such information as
confidential. This provision of law,
with all respect is in conflict to Article 19-A of Constitution of Pakistan
which deals with Freedom of Information. Right to Information has been inserted
by the Constitutional Eighteenth Amendment Act 2010 and it provides that every
citizen shall have the right to access to information in all matters of public
importance subject to regulation and reasonable restriction imposed by law. In rare and exceptional circumstances, the
Courts after the 18th Amendment have restrained itself or any other
Court from access to information. The
recent example being information collected through the report of Lal Masjid incident which has
been ordered by the
Section 55 of SIRA 2013 provides with power of the
Section 58 of SIRA 2013 deals with
conditions of service to remain unchanged whilst proceedings are pending either
before Conciliator, Arbitrator,
Section 59 of SIRA 2013 provides that no employer
shall remove any fixed assets of the establishment during the currency of an
illegal lock-out or strike which is not illegal. This provision of law is in direct conflict
with the Article 18 of the Constitution of Pakistan which provides for Freedom of
Business and Trade conferred on employer.
Necessary amendment in the law to the aforesaid effect be therefore incorporated
in this Act.
Section 61 of the Act deals with
representation of parties. This provision of law as also more or less,
identical provision under the earlier Industrial Relations legislation and has
given a way out to those persons who are not enrolled Advocate and covered
under Legal Practitioner and Bar Council Act 1973 to identify themselves as Labour Representatives and practice a profession of
law. It is recalled that Sindh Bar Council as early as 19.02.2011 had issued a
Circular, details whereof are reproduced verbatim:-
“It has
been observed that several persons (Ladies/Gents/Law Students etc.) who are
neither Law Graduates nor enrolled with the Sindh Bar
Council as advocate to practice in the Subordinate Courts and/or before High
Court, illegally wear black coats/advocate’s uniform, posing themselves as
advocate(s) before Sub-ordinate Court and/or Hon’ble
High Court, such persons are surely not eligible to act/pose/practice as such
and therefore are required to be strictly dealt with, hence, the Sindh Bar Council has taken serious notice of the fact and
has decided that any person who is not enrolled as an Advocate except those
under pupilage, if found in uniform of an Advocate or appear and/or imposes
himself/herself in Courts as Advocate, strict legal action for impersonation in
terms of section 58(1) of the Act, 1973 shall be taken immediately. Further all the senior lawyers are requested
to kindly make sure that the persons like those referred above, shall not
appear before the Hon’ble High Court, if not enrolled
as advocate(s) to act before the Hon’ble High Court and
not before the Sub-ordinate Courts, if not enrolled by the Sindh
Bar Council.
For ready
reference, the relevant provision of Legal Practitioners & Bar Councils
Act, 1973 is quoted below:
Section
58 (1) Act xxxv of 1973
Section 58
(1) any person who is not an advocate and practices the profession of law or
any person who is not entitled under this Act to practice in the Supreme Court,
a High Court or any other Court or Tribunal Subordinate thereto practices
before the said Court or Tribunal shall be punished with Imprisonment for a
term which may extend to three years, or with fine upto
fifty thousand rupee, or with both.”;
It is therefore imperative that Section 61 of SIRA
2013 be appropriately redrafted by the legislature within the meaning and
contemplation of Legal Practitioners and Bar Council’s Act 1973 as also within
the circular and guidelines issued by the Sindh Bar
Council.
Section 62 of the Act provides for interpretation of
settlement and award to be given by the Labour
Appellate Tribunal. There can be a
situation where difficulty and doubt as to the meaning of any of the provision
of labour legislation may arise. In order to avoid any labour
unrest and in a legal and constitutional manner CBA and or the employer may
prefer to obtain interpretation of any of the provision of law from the Labour Appellate Tribunal so that industrial peace and
harmony continue to be maintained and there is no disruption in
production. It is therefore suggested
that apart from interpretation of settlement and award, the sphere of power of
the Sindh Labour Appellate
Tribunal be extended to cover even interpretation of any of the provision of labour laws. If an
application is made either by the CBA or the employer requesting Labour Appellate Tribunal that difficulty and doubt has
arisen as to the interpretation of any of the provision of labour
legislation, the said reference be determined by the Tribunal who after giving
the parties an opportunity of being heard shall decide the matter and its
decision, subject to constitutional petition, being filed in the High Court
should be treated as final and binding not only on employer, but on the CBA and
in turn on all the workers of that establishment.
Recovery of money due from an employer under a
settlement or award is covered in terms of Section 63 of SIRA 2013. It appears that legislature has failed to
visualize, that just as an award is given by the Labour
Court or the Labour Appellate Tribunal against the
employer on the basis of industrial dispute raised by the CBA, much in the same
way, an employer has also a right to raise industrial dispute against CBA and
both Labour Court and Labour
Appellate Tribunal can give an award against CBA. The situation for recovery of money due by
employer against CBA, in such an award can also arise. It is therefore suggested that Section 63 of
SIRA 2013 be amended as under:-
“Recovery
of money due from and or by employer under any settlement or award: (i) any money due from or by employer under settlement or
under an award or decision of the Arbitrator, Labour
Court or Tribunal may be recovered as arrears of Land Revenue or as a public
demand or the set off or adjusting from check-off amount or even from gratuity
or provident fund of the workers, if upon an application of the person entitled
to the money, Labour Court or the Tribunal so
directs; (ii) where any workman or employer is entitled to receive from other
side any benefit under a settlement or under an award or decision of the
Arbitrator, Labour Court or the Tribunal, which is
capable of being computed in terms of money, the amount at which such benefit
shall be computed, may, subject to the rules made under this Act be determined
and referred, as provided for in sub section (1) and paid to the workmen or the
employer concerned within the specified date; (iii) Notwithstanding anything
contained in any other law for the time being in force, legal dues of the
workman or the employer as the case may be shall have priority in case of
liquidation of the establishment or against any eligible payments due to the
workmen; (iv) A Labour Court or the Labour Appellate Tribunal shall exercise the powers of
collector under the Sindh Land Revenue Act 1962 (XVII
of 1967) for recovery of an amount due under this Act.”
Section 64 of the Act provides for performance of
functions pending ascertainment of CBA.
This provision is reproduction of Section 21 of the Industrial Relations
Ordinance, 2011 corresponds almost verbatim to the earlier section 52 of the Industrial
Relations Ordinance, 1969, and Section 22 of the Industrial Relations
Ordinance, 2002 as also Section 71 of the Industrial Relations Ordinance, 2008.
It is very unfortunate that framers of Industrial Relations Act 2013 have not
yet realized that this
provision of law is invariably being
misused or abused by large number
of Unions through all these years. The
original section 52 of IRO, 1969 was introduced as a stop gap arrangements as under
prior law there was no concept of Collective Bargaining Agent but a
Section 65 to 71 provides for penalty for unfair labour practice, penalty for committing breach of
settlement, penalty for failing to implement settlement, penalty for false
statement, penalty for discharging office beakers of trade union in certain
circumstances, penalty for embezzlement or misappropriation of union funds and
penalty for other offence. If industrial
relations are to be developed and industrial peace and harmony is to be
maintained, the concept of sending either employer or for that matter workers
behind the Bar, or to sentence them to imprisonment be all discouraged. No doubt ever settlement executed between CBA
and the employer has to be implemented.
If willfully and deliberately employer fails to implement settlement, appropriate
provision be incorporated in the SIRA 2013 whereby employer is called upon
either by the Labour Court or Labour
Appellate Tribunal to pay additional punitive cost over and above the amount
involved. This concept already exists in
Section 35-A of CPC where courts are competent to impose costs which are either
actual costs and or compensatory costs.
It is therefore suggested that above mentioned provision of law be
suitably amended and necessary incorporation as to actual and compensatory
costs to be imposed against employer or workers for breach or failure to
implement settlement or award be incorporated, excluding thereby fine or
imprisonment. So also embezzlement or misappropriation of union funds should be
viewed seriously. Union funds belong to
the workers. Office bearers of the union
have neither any legal much less any moral right to embezzlement or
misappropriation of these funds. The law
should appropriately be framed whereby if an office bearer of the union is
found guilty of the embezzlement and misappropriation of union funds, the
entire amount so embezzled or misappropriated be realized from the gratuity and
or provident fund amount of the said worker office bearer of the union and on
realization of such amount, it be reimbursed to the union in its account. Presumption be raised that payment of the
legal dues so realized have been made to the office bearers of the union and no
further claim be entertained.
Appropriate amendment in law be thus made.
Section 73 of SIRA 2013 provides that where a person
is guilty of an offence which is a company or other body corporate, then every
Director, Manager, Secretary or other office or agent be deemed to be guilty of
such offence. This provision of law,
with all respect and humility is liable to be misused and abused by disgruntled
office bearers of the union. Necessary
amendments be therefore incorporated in the law
whereby it be provided that for the purpose of holding liable, the employer may
intimate to the CBA name of one person who would be held liable in case of any
offence under the said Act. Needless to
mention intimation of one name in writing but to the government already exist
in relation to those companies which are multinational companies. More or less on the same pattern provision be
incorporated and the law suitably be amended so that only one person so
intimated by the employer or corporation to the government and to the CBA be
held responsible in case of any offence allegedly committed under the said Act.
Section 78 of the Act provides for framing of the
rules by the government for carrying out purpose of this Act. It should be provided in law that framing of
the rules be, not made in consultation with the government which is an
executive but by the judiciary itself and rules namely Sindh
Industrial Relations Rules 2014 be framed only in consultation with Chief
Justice of High Court of Sindh.
Section 80 of SIRA 2013 deals with
Repeal and Savings. It is very unfortunate that this major
provision of law has been drafted ignoring the very basic and elementary
principle of law of interpretation. IRA
2008 was a sunset provision as held by the
“In the
case of Air League PIAC Employees (Supra), this Court has held that Industrial
Relations Act, 2012 stood repealed on the expiry of the period mentioned in
Section 87(3) of the Act and consequence of such repeal will render the
judgment of the Court corum non judice. The Act stood repealed on 30.04.2010 and
after that there was no legislation in the field of labour
dispensation until 18.07.2011 when IRO 2011 was promulgated.”
It is very unfortunate the legislator in the Province
of Sind in hot haste ignored these reported and unreported judgments of the
Apex Court, and have in terms of Section 80 (i)
repealed IRA 2008 in the year March 2013 when already this Act earlier stood
repealed through sunset clause as early as 30.4.2010. After the Eighteenth Amendment in the
Constitution whereby Item No. 26 and 27 of the Concurrent List was deleted, it
is only Provincial Government and not Federal Government that could frame labour legislation, except through invoking mandatory
provision of Article 144 of the Constitution which provide that if one or more
Provincial Assembly pass a resolution to the effect that Majlis-e-Shoora or the Parliament may by law regulate any matter not
enunciated in the Federal Legislative List only in such a situation Majlis-e-Shoora can pass an
Act. Realizing this legal preposition Sindh Government after Eighteenth Amendment in the
Constitution promulgated Industrial Relations (Revival & Amendment) Act
2010 and it was made effective as from
Section 81 of the law provides that transfer of cases
from NIRC to Sindh Labour
Appellate Tribunal,
Section 82 of SIRA 2013 provides that if there is any
difficulty which has arisen to give effect to any provision of this Act, the
Government of Sindh by notification in the official
gazette can make such order which is not inconsistent with the approval of this
Act, as may appear to be necessary for the purpose of removing difficulty. Difficulty and doubt omission,
inconsistencies and anomalies have already been mentioned herein above. If Government of Sindh,
now in power, is serious in the matter, let them examine these suggestions in
larger national interest and remove these difficulties, inconsistencies and
anomalies and doubts and invoke appropriate provision of law and or bring about
amendments.
Ours is a world where people don’t know what they want
and are willing to go through hell to get it.
We conclude wit Abraham Lincoln, American
great President all famous quote:
“I am not
bound to win, but I am bound to be true.
I am not to succeed, but I am bound to live by the light that I
have. I must stand with anybody that
stand right, and stand with him while he is right, and part with him when he
does wrong.”
Havelock Ellis has well said:
“What we
call progress is the exchange of one nuisance for another naissance”.
Perhaps the learned Havelock Ellis has Labour Legislations passed in Sindh
in mind. Presently there is chaos in Sindh. Henry Miller,
an American author has said:
“Chaos
is the score upon which reality is written.”
Will our legislature listen and amend the
law. You can’t learn if you don’t make
mistake. It takes courage to stand up
for what you believe in.
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