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Phone: (021)32727266
(021)32729770
Email: Info@smyaqoob.com
Website: www.smyaqoob.com
Date: 24-01-2009
Circular Number: C-116
Additional Comments on Certain Provisions of the Industrial Relations Act, 2008
Please refer to our Circular No.114 dated 07-11-2008 and Circular No.115 dated 29-11-2008 in connection with the above Act. The Act was rushed and passed in the Senate and it went to the National Assembly where too it was passed but there was hush hush if any changes in the Act were made by the National Assembly which could not be known to the public. However by the assent of the Act on 06-12-2008 by the President and publication of the Act in the Extraordinary Gazette of Pakistan on 15-12-2008, it is revealed that some changes have been made in the Act by the National Assembly. These comments deal only with important changes made in the Act by the National Assembly as under:
1. Section 2(IX) – “establishment” – the same definition as in IRO, 2002 incorporated in the Senate but modified and the condition of common balance sheet, profit and loss account has been removed by the National Assembly and thereby the establishment means the whole organisation including its departments, branches, etc situated any where or in different places in Pakistan and condition of the said common account have been taken away in National Assembly and now all branches together make one establishment. This would increase the work of NIRC as Unions in such establishments would constitute as industrywise trade Union.
2. Section 2(XIV) – “industry” – IRO, 69 was taken but changed and added by the National Assembly excluding those set up for charitable purposes. This change is very significant as other conditions of IRO, 02 have been removed by National Assembly and thereby all types of charitable organisations are not industry and the Act does not apply to them.
3. Section 2(XXIX) – Worker – Supervisor still included which wrong as the supervisor is lowest link of management from where the management line starts and goes upward. The Standing Orders 1968 and some other Labour Laws already exclude supervisors and making them workers under the Act would create conflict and confusion.
4. Section 3(a) – Proviso about duel membership of Unions same as IRO,02 but how would this be known? A worker may still keep quietly his membership in more than one Unions. Besides the Union of which he was a member earlier should know of his being no longer member of it’s Union.
5. Section 3(XXVIII) – as mentioned in our earlier comments the Labour Appellate Tribunal has been restored but there is no certainty when would they start functioning.
6. Section 7 of the Act – heinous offences under P.P.C. have also been included for disqualification of being officer of any trade Union.
7. Section 12(3) is the same as Section 12(3) IRO, 1969 making easy for the Registrar to cancel registration of federations or trade Unions which has been dissolved or ceased to exist after making some enquiry.
8. Section 19 of the Act – Limiting of conspiracy law. Not limited only to the Ordinance / Act but
could be any law.
9. Section 24 of the Act – CBA – Section 20 of the IRO,2002 has not been incorporated but mainly the provisions of Section 22, IRO,1969 have been incorporate thereby grievance from the side of unions has been removed but Section 24(2) of the Act with two provisos about holding secret ballot at any time on application made by 1/5th of total number of workers and such application can also be made by the employer or the Govt, the Registrar shall hold secret ballot which is very significant.
10. Section 25(8) (c) in the functions of NIRC any matter purely confined to local nature has been taken out from its functions.
11. Section 25(9) – The power to grant injunction by NIRC has been further enhanced to give interim injunction also other than under Regulation 32.
12. Section 34 & 35 of the Act includes the provisions of Sections 23-B & 23-C of IRO,1969, reviving these bodies and their meetings may be held but deliberations of the same have no binding effect and Sections 39 & 40 of the Act included these functions in the Work Council. On the top of this Section 38 of the Act has made penal offence of violating these provisions which are nothing but waste of time.
13. Section 36 & 37 of the Act about inspectors incorporates Section 23-D & 23-E of IRO,69 which were rightly eliminated in IRO,02 to avoid the abuse of the same.
14. Section 41 of the Act has brought back Section 25-A, IRO,69 – the main demand from the workers side.
15. Section 65 of the Act has enhanced this Section not to change the rights under settlements awards and decision of Courts during pendency of proceeding until revised for betterment of workers.
16. By Section 86 of the Act – all pending cases in the High Courts shall stand transferred from the date of commencement the Act to the Tribunal which include pending cases under IRO,1969 and IRO,2002 as such cases were treated under corresponding provisions of IRO, 2002 as provided by Section 80(2) (b), IRO,02.
17. On the penal provisions of the Act we have already given our comments in our Circular No.115 dated 29-11-2008.
18. Section 87(3) of the Act provides that unless repealed earlier the Act shall stand repealed on 30-04-2010. This would create other problems. About 2 months have passed, no chairmen of Tribunals have yet been appointed, providing Court rooms, furniture, staff, etc would take further time after which the High Courts would take some time to sent such case files to the Tribunals and then the Tribunal could start to function with heavy back log of pending cases from the High Courts and soon the date of 30-04-2010 would be reached. Instead of this, it would been much proper to make the Act with due thought and study to make it a permanent law as far as possible.
The above may be carefully perused to study and understand implications of the same. This is also available on our above website and may be downloaded from it.
For M/s S. M. Yaqoob
