The Industrial Relations Advisers,

Management & Labour Laws Consultants

 

Room 3, 1st floor, Falaknuma Building, Near The Laboratory & Haroon Radio, Abdullah Haroon Road, Karachi

Phone: 32727266 & 32729770 Fax: 32729770 (S M Iqbal)  Email: iqbalblund@hotmail.com 

 

 

Circular No. C Ė 129                                                                                                                     Date: -30-05-2011

 

 

 

 

18th amendment of the Constitution and Validity of the

Federal Draft Bill of the Industrial Relations Act, 2011

 

 

                        We have gone through the above Draft. We are not giving our comments and views on itís various provisions but this is confined only to itís validity, vires and legality as explained below.

 

1.      The Labour Policy of 1969 though brief was progressive and comprehensive and on the lines of itís recommendation the Industrial Relations Ordinance, 1969 was promulgated, later on the Industrial Relations Ordinance, 2002 and the Industrial Relations Act, 2008 came with miner changes.

 

2.      With the break up of the One Unit, separate provinces were restored. The industrial Relations Ordinance, 1969 catered the following needs in the changed circumstances:-

 

i)                    The concept of unfair labour practice on the part of employers and the workers were introduced mainly to be dealt by the National Industrial Relations Commission (NIRC) created by the Ordinance as Federal body.

ii)                   The mushroom growth of trade unions was curtained by providing industry-wise trade unions having members in more than one provinces and registered by the NIRC.

iii)                 The industry-wise trade unions were determined and certified as Collective Bargaining Agents by the NIRC thereby one C.B.A. in the whole establishment and the employers had to deal only with one C.B.A. This brought uniformity in the terms and conditions of service of the workers in the whole organization.

iv)                 In certain circumstances and if justified the NIRC could determine and certify the Collective Bargaining Unit, beside C.B.A. for the whole establishment to deal with local matters of the organization.

v)                  It encouraged industry-wise trade unions and federation of such trade unions and formation of federations of trade unions at national level.

vi)                 NIRC had also some promotional and advisory functions to the Government in respect of education of workers as provided in the Ordinance but this function was not given due importance and not properly performed.

 

  1. By the 18th Amendment dated 19-04-2010 of the Constitution the Concurrent List was abolished which included Labour in it and the same has gone to the exclusive jurisdiction of the Provinces.
  2. Section 87(3) of the Industrial Relations Act, 2008 specifically provided to stand repealed on 30-04-2010 and stood repealed accordingly leaving no law on it in the country. The Punjab Govt. took the lead to promulgate the Punjab Industrial Relations Ordinance, 2010 which has given certain functions of the NIRC to the labour courts subject to making rules and the khyber P.K. also promulgated itís K.P.K. IRO, 2010 same as of the Punjab but both have not yet prescribed the said rules, the Balochistan IRO, 2010 (now coverted into Act) has created itís own provincial Industrial Relations Commission. Applications of these Ordinances are restricted to every province only. The Sindh Govt. has adopted IRA, 2008 by its IR (Revival and Amendment) Act, 2010 and in Sindh NIRC is still functioning but the Sindh Govt. is working on to make its won Sindh Industrial Relations Act, 2011.

 

  1. The Draft Bill is a comprehensive law on Industrial Relations like IRO, 1969, IRO, 2002 and IRA, 2008 and similar laws on it have been made by the provinces also which would create conflict between the same keeping in view the 18th amendment.

 

  1. The existence of NIRC being a Federal Institution after the 18th Amendment has been challenged in the Sindh High Court and the Supreme Court which are pending.

 

  1. In view of legal situation created by the above there cannot be industry-wise trade unions, Industry-wise C.B.A., Industry-wise Federation of trade unions and Federations at national level as provided by the IRO, 1969 IRO, 02 and IRO, 2008 as all provincial IR laws, Registrar, labour courts and Tribunal provided by these laws have their jurisdiction limited only to the province which has accentuated the need to have an institution like NIRC as before to fulfill the needs and requirements at the national level for the whole of country and the above Draft Bill has been prepared by the Federal Govt. using the excuse of I.L.O. Conventions 87 & 98 ratified by Pakistan.

 

  1. Excuse of these I.L.O. conventions alone trespassing upon right of the provinces would not give jurisdiction to the Federal Govt. after the 18th Amendment. I.L.O. Convention ratified by any country does not prescribe only the federal/central government to implement it, it could be implemented by the federal govt. or the federal govt. get the same implemented by the provinces. Since Labour is no longer a Federal subject after the 18th Amendment, the Federal Govt. cannot make such law till the Constitution is amended and a provision in the Federal List some what like the below clause is added:-

 ďCoordination, consolidation, uniformity of laws through out Pakistan and meeting international obligations and I.L.O. conventions ratified by PakistanĒ.

 

  1. The courts are bound to give decisions according to the law and Constitution and if this law made by the Federal Govt. is challenged in the Superior Courts, it is very likely to be declared as illegal, void and ultra vires of the Constitution of Pakistan as recently a D.B. of the Sindh High Court vide its decision dated 26-02-2011 in Const pet.  No. 260/2008, Employers Federation of Pakistan V/s Federal Govt. declared amendments in the labour laws through the Finance Act as void and ultra vires as the labour laws have no link with the Federal Consolidated Fund and payment or charge upon money bill. We hope that the Federal Govt. would not wait for such Order of any Superior Court and then move to avoid violation of the Constitution by the Federal Government after the 18th amendment of the Constitution.

 

  1. In our considered view total elimination of the Concurrent List from the constitution by the 18th Amendment was not proper and certain such aspects as explained above should have been simultaneously added in the Federal List to save from such situation and anomalies and now the proper course left is to make such single further amendment in the Constitution not adding any other amendments for easy passage and to avoid controversies.

 

  1. We hope and trust this shall be diligently perused and studied and any suggestions for improvement will be welcomed by us.

 

 

  For M/s S.M. Yaqoob

                                                                                                       Industrial Relations Advisers &  

                                                                                                       Labour Laws Consultants