The Industrial Relations Advisers,

Management & Labour Laws Consultants

 

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Industrial Relations Ordinance, 2002 

 

 

 

 

 

ISLAMABAD (October 29 2002) : following is the text of the Ordinance promulgated by the President:

ORDINANCE NO. XCI OF 2002.

AN ORDINANCE: to amend, consolidate and rationalize the law relating to formation of trade unions, regulation and improvement of relations between employees and workmen and avoidance and settlement of any differences or disputes arising between them;

WHEREAS it is expedient to amend, consolidate and rationalize the law relating to formation of trade unions, regulation and improvement of relations between employers and workmen and avoidance and settlement of any differences or disputes arising between them;

AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action;

NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitutional Order No.1 of 1999, read with the Provisional Constitution (Amendment) Order No.9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance;-

Chapter I Preliminary: 1. Short title, extent, commencement and application.- (1) This Ordinance may be called the Industrial Relations Ordinance, 2002.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

(4) It shall apply to al persons employed in any establishment or group of establishments or industry except those employed (a) in the Police or any of the Defense Services of Pakistan; (b) in any installations or services exclusively connected with the Armed Forces of Pakistan including Ministry of Defense lines of the Railways; (c) by the Pakistan Security Printing corporation or the Security Papers Limited or Pakistan Mint; (d) in the administration of the State other than those employed as workmen by the Railways, Post Telegraph and Telephone Departments; (e) 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; (f) by an institution established for payment of employees' old-age pensions or for workers' welfare; (g) as a member of the Watch and Ward, Security or finance 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.

2. Definitions:- In this Ordinance, unless there is anything repugnant in the subject or context,-

(i) "arbitrator" means a person appointed as such under this Ordinance;

(ii) "award" means the determination by a labour Court, Arbitrator or an Appellate Court of competent jurisdiction of any industrial dispute or any matter relating thereto and includes an interim award;

(iii) "association" means any organisation of employers formed primarily for furthering and defending the interests and rights of employers.

iv) "Board of Conciliators" means a tripartite Board of Conciliators constituted under sub-section (3) of section 26;

(v) "collective bargaining agent" means the trade union of workmen which, under section 20, is the agent of the workmen in the establishment, group of establishments or, as the case may be, industry in the matter of collective bargaining;

(vi) "collective bargaining unit" means those workers or class of workers of an employer in one or more establishments coming within the same class of industry whose terms and conditions on employment are, or could appropriately be, the subject of collective bargaining together;

(vii)" Commission" means the National Industrial Relations Commission constituted under section 49;

(viii) "conciliation proceedings" means any proceedings before a Conciliator or Board of Conciliators;

(ix) "Conciliator" means-

(a) a person appointed as such by the Federal Government under sub-section (2) of section 26, in respect of disputes which the Commission is competent to adjudicate and determine; and

(b) in respect of other disputes, a person appointed as such by the Provincial Government under sub-section (1) of section 26.

(x) "employer" in relation to an establishment means any person or body of person, whether incorporated or not, who or which employs workmen in an establishment under a contract of employment and includes-

(a) an heir, successor or assign, as the

case may be, of such person or, body as aforesaid;

(b) any person responsible for the direction, administration, management and control of the establishment;

(c) the authority, in relation to an establishment or group of establishments run by or under the authority of any department of the Federal Government or a Provincial Government, appointed in this behalf or, where no authority is appointed, the head of the department;

(d) the office bearer, in relation to an establishment run by or on behalf of a local authority, appointed in this behalf, or where no officer is so appointed, the chief executive office bearer of that authority;

(e) the proprietor, in relation to any other establishment, of such establishment and every director, manger, secretary, agent or office bearer or person concerned with the management of the affairs thereof;

(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; and (g)

office bearers of a department or Division of the Federal or Provincial or local authority who belong to the managerial, secretarial or directional cadre or categories of supervisors or agents and those who have been notified for this purpose in the official Gazette;

(xi) "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;

(xii) "executive" means a person or body of persons, by whatever name called, to whom or which the management of the affairs of a trade union is entrusted under its constitution;

(xiii) "group of establishments" means establishments belonging to the same employer and the same industry;

(xiv) "illegal lock-out" means a lock-out declared, commenced or continued otherwise than in accordance with the provisions of this Ordinance;

(xv) "illegal strike" means a strike declared, commenced or continued otherwise than in accordance with the provisions of this ordinance;

(xvi) "industrial dispute" means any dispute or difference between employers, and workmen or between workmen and workmen which is concerned with the employment or non-employment or the terms of employment or the conditions of work; and is not in respect of the enforcement of any right guaranteed or accrued to workers by or under any law, other than this Ordinance, or any award or settlement for the time being in force;

(xvii) "industry" means any business, trade, manufacture, calling, service, occupation or employment 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;

(xviii) "Inspector" means an Inspector appointed under this Ordinance;

(xix) "Labour Court" means a Labour Court established under section 44;

(xx) "lockout" means the closing of a place of employment or part of such place or the suspension, of work, wholly or partly, by an employer, or refusal, absolute or conditional, by an employer to continue to employ any number of workmen employed by him where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and conditions of, or affecting, employment;

(xxi) "office bearer" means any member of the executive of a trade union in an establishment, industry or trade, but does not include in auditor or legal advisor thereof;

(xxii) "prescribed" means prescribed by rules made under section 79;

(xxiii) "public utility service" means any of the services specified in Schedule I;

((xxiv) "registered trade union" means a trade union registered under this Ordinance;

(xxv) "Registrar" means Registrar of trade unions appointed under section 57;

(xxvi) "settlement" means a settlement arrived at in the course of conciliation proceedings, and includes an agreement between an employer, the collective bargaining agent or work men, as the case may be, arrived at otherwise than in the course of such proceedings, where the agreement is in writing and has been signed by the parties thereto in such manner an may be prescribed and a copy thereof has been sent to the Provisional Government, the Conciliator and such other persons as may be prescribed;

(xxvii) "Schedule" means the Schedule to the Ordinance;

(xxviii) "strike" means cessation of work by a body of persons employed in any establishment acting in combination or a concerted refusal or refusal under a common understanding of any number of persons who have been so employed to continue to work or to accept employment;

(xxix) "trade union" means any combination of workers formed primarily for the purpose of furthering and defending the interests and rights of workers in any industry or establishment and includes an industry-wise federation of two or more collective bargaining agent unions and a federation at the national level of ten or more collective bargaining agent unions; and

(xxx) "worker" and "workman" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity.

CHAPTER II Trade unions: 2. Trade unions and freedom of association.- (1) Subject to the provision of Article 17 of the institution of the Islamic Republic of Pakistan, This Ordinance and any other law for the time being in.

(a) the workers shall, without distinction whatsoever, have the right to form and subject to the constitution or rules of a trade union, join any trade union of their choice within the establishment or industry they are employed in; provided that worker shall not be entitled to be a member of more than one trade union at any one time; provided further that on joining another union, the earlier membership will stand automatically cancelled;

(b) the employers, shall, without distinction whatsoever, have the right to form or join any association of their choice and their association shall have the right to draw up their constitution and rules, elect freely their representatives, organize their administration and activities and formulate their programmes;

(c) trade unions of workers and associations of employers shall have the right to form and join federations and confederations of trade unions and associations, and such federations and confederations shall have the right to affiliate with international organisations and confederations of workers and employers, as the case may be; and

(d) 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.

(2) The workers and employers and their respective bodies shall, exercising their rights under section (1), like other persons or organized collectivities, respect and abide by all Federal and judicial laws.

4. Application for registration.- Any trade union may, under the signatures of its President and Federal Secretary, apply for registration of the trade union under this Ordinance.

5. Requirements for application. An application for registration shall be made to the Registered shall be accompanied by-

(a) A statement showing-

(i) the name of the trade union and the address of its head office; (ii) date of formation of the trade union;

(iii) the titles, names, ages, addresses and occupations of the office bearers of the trade union;

(iv) statement of total paid membership;

(v) the name of the establishment, group of establishments or the industry, as the case may be, to which the trade union relates along with a statement of the total number of workers employed therein;

(vi) the names and addresses of the registered trade unions in the establishment, group of establishments or industry, as the case may be, to which the trade union relates;

(vii) the names, addresses and registration number of member trade unions, in case the application is made by a federation of trade unions;

(b) there copies of the constitution of the trade union together with a copy of the resolution by the members of the trade union adopting such constitution bearing the signatures of the Chairman of the meeting;

(c) a copy of the resolution by the members of the trade union authorising its President and the General Secretary to apply for its registration; and

(d) a copy of the resolution from each of the constituent trade unions agreeing to become a member of a federation or confederation of trade unions, where such application is made by a federation or confederation.

6. Requirements for registration.- (1) A trade union shall not be entitled to registration under this Ordinance unless the constitution thereof provides for the following matters, namely:-

(a) The name and address of the trade union;

(b) the purposes for which the trade union has been formed;

(c) the purposes for which the general funds of the union shall be applicable;

(d) the number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy five per cent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry for which the trade union has been formed;

(e) the conditions under which a member shall be entitled to any benefit assured by the constitution of the trade union and under which any fine or forfeiture may be imposed on him;

(f) the maintenance of a list of the members of the trade union and of adequate facilities for the inspection thereof by the office bearers and members of the trade union;

(g) the manner in which the constitution shall be amended, varied or rescinded;

(h) the sage custody of the funds of the trade union, its annual audit, the manner of audit and adequate facilities for inspection of the account books by the office bearers and members of trade union;

(i) the manner in which the trade union may be dissolved;

(j) the manner of election of office bearers by the general body of the trade union and the term not exceeding three years, for which an office bearer may hold office upon his election or re-election through secret ballot;

(k) the procedure for expressing want of confidence in any office bearer of union the trade union; and

(l) the meetings of the executive and of the general body of the trade union, so that the executive shall meet at least once in every four months and the general body at least once every year.

(2) Without prejudice to the provisions of the sub-section

(l), a trade union of workmen shall not be entitled to registration

under this Ordinance-

(a) unless all its members are workmen actually engaged or employed in the establishment or industry with which the trade union is connected; and

(b) where there are two or more registered trade unions in the establishment, group of establishments or industry, with which the trade union is connected, unless it has as its members not less than one-fourth of the total number of workmen employed in such establishments, group of establishments or industry, as the case may be.

7. Disqualification for being an office bearer or a trade union.- Notwithstanding anything contained in the constitution or rules of a trade union, a person who has been convicted of an offence under section 70 or of a criminal offence 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., shall be disqualified from being elected as, or from being a member or office bearer of a trade union.

8. Registered trade union to maintain register, etc. - Every registered trade union shall maintain in such form as may be prescribed-

(a) a register of members showing particulars of subscriptions paid by each member;

(b) an accounts book showing receipt and expenditure; and

(c) a minute book for recording the proceedings of meetings.

9. Registration.- (1) The Registrar, after having exercised due diligence and verification of facts, and on being satisfied that a trade union has complied with all the requirements of this Ordinance, shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application under intimation to the concerned employer.

(2) In case the application for registration is found by the Registrar to be deficient in any material respect, he shall communicate in writing all his objections to the trade union within a period of fifteen days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the receipt of the objections.

(3) When the objections raised by the Registrar have been satisfactorily met, the Registrar shall register the trade union as provided in sub-section (1) and issue a registration certificate thereunder within three days of the date of the objections having been so met under intimation to the employer.

(4) In case the objections raised under sub-section (2) are not satisfactorily met or are not replied to within the time mentioned therein, the Registrar shall reject the application.

(5) Where the application for registration is rejected or the Registrar delays the disposal of such application beyond the period of fifteen days specified in sub-section (1) or does not issue a registration certificate within a period of three days specified in sub-section (3), the trade union may appeal to the Labour Court which may, for reasons to be recorded, by an order, direct the Registrar to register the trade union and to issue a registration certificate or may dismiss the appeal.

(6) Notwithstanding anything contained in any other provision of this Ordinance, every alteration made in the constitution of a registered trade union and every change of its office bearers shall be notified by registered post to the Registrar by the trade union within fifteen days of such alteration or change, as the case may be.

(7) The Registrar may refuse to register any alteration or change referred to in sub-section (6), if it is in contravention of any of the provisions of this Ordinance or if it is in violation of the constitution of the trade union.

(8) Subject to the provisions of sub-section (7), every inclusion or exclusion of any constituent unit of a federation of trade unions shall be notified by registered post to the Registrar by the federation within fifteen days of such inclusion or exclusion.

(9) In case there is a dispute in relation to the change of office bearers of a trade union or any trade union is aggrieved by order of the Registrar made under sub-section (7), any office bearer or member of the trade union may apply or appeal to the Labour Court which shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register such alteration or change or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the trade union under his supervision.

(10) Transfer, etc., of office bearers of trade union during pendency of application for registration.-Save with the prior permission of the Registrar or the Labour Court, no office bearer to the employer in writing.

(11) Certificate of registration.- The certificate of registration issued under section 9 shall be conclusive evidence of the registration of a trade union under this Ordinance.

(12) Cancellation of registration.- (1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has- (i) contravened or has been registered in contravention of, any of the provisions of this Ordinance or the rules made thereunder;

(ii) contravened any of the provisions of its constitution; or (iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules made thereunder.

(2) Where any person who is disqualified under section 7 from being elected as, or from being an office bearer of a trade union, is elected as an office bearer of a registered trade union, the registration of that union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so directs.

(3) The registration of a trade union shall be cancelled by the Registrar, by giving reasons for such cancellation in writing, if, after holding an inquiry he finds that any trade union:

(i) has dissolved itself or has ceased to exist; or

(ii) has not been a contestant in a referendum for the determination of a collective bargaining agent; or

(iii) has not applied for determination of collective bargaining agent under section 20 (2) within two months of its registration as another union or promulgation of this Ordinance, whichever is earlier, provided there does not already exist a collective bargaining agent determined under section 20 (11) in an establishment, or group of establishments or industry; or

(iv) has secured less than 15% of polled votes per final list of voters, during a referendum for the determination of collective bargaining agent.

13. Appeal against cancellation of registration.- Any trade union aggrieved by a decision given-

(a) by the Labour Court under sub-section (1) or (2) of section 12, may appeal to the High Court; or

(b) by the Registrar under sub-section (3) of section 12, may appeal to the Labour Court.

14. Incorporation of registered trade union.-(1) Every registered trade union shall be a body corporate by the name under which it is registered, shall have perpetual succession and a common seal and the power to contract and to acquire, hold and dispose of property, both movable and immovable and shall by the same name sue or be sued.

(2) The Societies Registration Act, 1860 (XXI of 1860), the Co-operative Societies Act, 1912 (II of 1912), and the Companies Ordinance, 1984 (XLVII of 1984), shall not apply to any registered trade union and the registration of any trade union under any of these enactments shall be void.

15. Law of conspiracy limited in application.- No office bearer or member of a registered trade union or collective bargaining agent as certified by the Registrar shall be liable to punishment under sub-section (2) of section 120B of the Pakistan Penal Code (Act XVL of 1860), in respect of any agreement made between the members thereof for the purpose of furthering any such object of the trade union as is specified in its constitution referred to in section 6, unless the agreement is an agreement to commit an offence, or otherwise to violate any law other than its Ordinance.

16. Immunity from civil suit in certain cases.- (1) No suit or other legal proceedings shall be maintainable in any civil court against any registered trade union or collective bargaining agent or any office bearer or member thereof in respect of any action done in contemplation or furtherance of an industrial dispute to which the trade union is a part on the ground only that such act induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispose of this capital or his labour as he wills. (2) A trade union shall not be liable in any suit or other legal proceedings in any civil court in respect of any tortuous act done in contemplation or furtherance of an industrial dispute by an agent of the trade union if it is proved that such person acted without the knowledge of, or contrary to express instructions given by, the executive of the trade union.

17. Enforceability of agreement between members of trade union.- Notwithstanding anything contained in any other law for the time being in force, an agreement between the members of a trade union shall not be void or avoidable by reason only that any of the objects of the agreement are in restraint of trade; Provided that nothing in this section shall enable any civil court to entertain any legal proceedings instituted for the express purpose of enforcing, or recovering damages for the breach of any agreement concerning the conditions on which any member of a trade union shall or shall not sell their goods, transact business, or work, employ or be employed.

18. Registration of federation of trade unions.- (1) Any two or more registered trade unions belonging to an industry may constitute an industry-wise federation. Any ten or more registered trade unions (at least one from each Province) may constitute a federation or confederation at the national level. In both cases, the respective general bodies of the trade unions, if they so resolve, shall constitute a federation or confederation of trade unions by executing an instrument of federation or confederation and apply for registration of such federation or confederation: Provided that a trade union of workmen shall not join a federation which comprises of an association of employers, nor shall an association of employers join a federation which comprises of a trade union.

(2) No trade union, federation or confederation shall be formed and registered having same, similar or identical name.

(3) An instrument of federation referred to in sub-section (1) shall, other things, provide for the procedures to be followed by federated trade unions or associations and the rights and responsibilities of the federation and the federated trade unions or associations.

(4) An application for the registration of a federation of trade unions or associations shall be signed by the President of all the trade unions or all associations constituting the federation or by the office bearers of these trade unions or associations respectively authorised by the trade unions or associations in this behalf and shall be accompanied by three copies of the instrument of federation referred to in sub-section (1).

(5) Subject to sub-sections (1), (2), (3) and (4), provisions of this Ordinance shall, so far as may be and with the necessary modifications, apply to a federation of trade unions or associations as they apply to a trade union or association.

19. Returns.- (1) There shall be sent annually to the Registrar, on or before such date as may be prescribed, a general statement audited in the prescribed manner of all receipts and expenditure of every registered trade union, federation or confederation of trade unions during the year ending on the 31st day of December next preceding such prescribed date, and of the assets and liabilities of the trade union, federation or confederation existing on such 31st day of December, as may be prescribed: Provided that the accounts maintained by the 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: 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.

(2) Together with the general statement referred to in sub- section (1), there shall be sent to the Registrar a statement showing all changes of office bearers made by the trade union, federation or confederation of trade unions during the year to which the general statement refers, along with a statement of the total paid membership and a copy of the constitution of the trade union corrected up to the date of the dispatch thereof.

(3) A copy of every alteration made in the constitution of a registered trade union and of a resolution of the general body having the effect of a provision of the constitution shall be sent to the Registrar within fifteen days of the making of the alteration or adoption of the resolution.

(4) In case the registered trade union is member of a federation or confederation shall be given in the annual statement.

20. Collective bargaining agent.-

(1) Where there is only one registered trade union in an establishment or a group of establishments or industry, such trade union shall, if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments or industry, upon an application made in this behalf be certified by the Registrar in the prescribed manner to be the collective bargaining agent for such establishment or, as the case may be, group of establishments.

(2) Where there are more registered trade unions than one in an establishment or a group of establishments or industry, the Registrar shall, upon an application made to him in this behalf by any such trade union, hold within fifteen days from the making of the application, a secret ballot to determine as to which one of such trade unions shall be the collective bargaining agent for the establishment or group of establishments:

Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application:

Provided further that the Registrar shall not entertain any application under this sub-section in respect of an establishment or group of establishment consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), unless such application is made during the month in which the number of workmen employed in such factory in a year in usually the maximum

(3) Upon receipt of an application under sub-section (2) the Registrar shall, by notice in writing, call upon every registered trade union in the establishment or group of establishments to which the application relates-

(a) to indicate whether it desires to be a contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group of establishments, as the case may be; and

(b) to submit to him within the time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming a member and if the trade union is a federation of trade unions, a list of its affiliated trade unions together with a list of members of each such trade union showing in respect of each such member the said particulars

(4) Every employer shall-

(a) on being so required by the Registrar, within fifteen days, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment

However a separate list of workmen whose period of employment is less than three months showing the said particulars in respect of each workman may also be submitted; and

(b) provide such facilities for verification of the list submitted by him and the trade unions as the Registrar may require:

Provided that in computing the period of three months referred to in clause (a), in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), the period during which he was employed in that factory during the preceding season shall also be taken into account

(5) The Registrar shall, after verification of the lists submitted by trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment, as computed in accordance with sub-section(4), is not less than three months and who is a member of any of the contesting trade unions and shall, at least four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared

(6) Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under sub-section (5) shall be entitled to vote at the poll to determine the collective bargaining agent

(7) Every employer shall provided all such facilities in his establishment as may be required by the Registrar for the conduct of the poll but shall not interfere with, or in any way, influence, the voting

(8) No person shall canvass for vote within a radius of hundred yards of the polling station

(9) For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall-

(a) fix the date of the poll and intimate the same to each of the contesting trade unions and also to every employer four days prior to such date;

(b) on the date fixed for the poll so place, in the polling station set up for the purpose, the ballot boxes which shall be sealed in the presence of the representatives of the contesting trade unions as to receive the ballot papers;

(c) conduct the poll at the polling station at which the representatives of the contesting trade unions shall have the rights to be present;

(d) after the conclusion of the poll and in the presence of such of the representatives of the contesting trade unions as may be present, open the ballot boxes and count the votes; and

(e) after the conclusion of the count, certify the trade union which has received the highest number of votes to be the collective bargaining agent:

Provided that no trade union shall be certified to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total number of workmen employed in such establishment or, as the case may be, group of establishment:

Provided further that, if not trade union secures such number of votes in the first poll, a second poll shall be held between the two trade unions which secure the highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at such further poll

(10) No trade union shall be certified to be the collective bargaining agent under sub-section (2) without holding a secret ballot

(11) Where a registered trade union has been certified under clause (e) of sub-section (9) to be the collective bargaining agent for an establishment or group of establishments, no application for determination of the collective bargaining agent for such establishment or group of establishments shall be entertained within a period of three years from the date of such certification except where the registration of such a registered trade union is cancelled before the expiration of that period

(12) A collective bargaining agent may, without prejudice to its own position, impaled as a party or any federation of trade unions of which it is a member

(13) A collective bargaining agent in relation to an establishment or group of establishments shall be entitled to-

(a) undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work, other than matter which relate to the enforcement of any right guaranteed or secured to it or any award or settlement;

(b) represent all or any of the workmen in any proceedings;

and

(c) give notice of, and declare, a strike in accordance with the provisions of this Ordinance

(d) nominate workmen on the Boards of Provident Funds and Workers' Participation Fund of their respective establishment or industry

(14) The Registrar may authorize in writing an office bearer to perform all or any of his functions under this Ordinance and the rules made thereunder

(15) After an application under sub-section (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

21 Check-off (1) If a collective bargaining agent so requests, the employer of the workmen who are members of a trade union shall deduct from the wages of the workmen such amounts towards their subscription to the funds of the trade union as may be specified with the approval of each individual workman named in the demand statement furnished by the trade union

(2) An employer making any deductions from the wages under sub-section (1) shall, within fifteen days of the end of the period for which the deductions have been made, deposit the entire amount so deducted by him in the account of the trade union on whose behalf he has made the deductions

(3) A collective bargaining agent shall maintain with any Scheduled Bank or with a Post Office Saving Bank an account to which shall be credited the entire amount deducted by the employer under sub-section (1) from the wages of the members of the trade union

(4) The employer shall provide facilities to the collective bargaining agent for ascertaining whether deductions form the wages of its members are being made under sub-section (1)

22 Performance of functions pending ascertainment of collective bargaining agent - Any act or function which is by this Ordinance required to be performed by, or has been conferred upon, a collective bargaining agent may, until a collective bargaining agent has been certified under the provisions of this Ordinance by performed by a registered trade union which has been recognised by the employer or employers.

CHAPTER III Workers' Participation and Dispute Resolution: 23. Shop Stewards to act as link between labour and management.- (1) In every establishment in which fifty or more workmen are employed, a Shop Steward, from amongst the workmen in a shop, section or department of the establishment shall-

(a) be nominated by the collective bargaining agent,

where there is a collective bargaining agent in the establishment; or

(b) be elected at a secret ballot held in the prescribed manner, where there is no collective bargaining agent in the establishment.

(2) The employer shall provide all such facilities in his establishment as may be required for the holding of a ballot under sub-section (1) but shall not interfere with, or in any way influence, the voting.

(3) A Shop Steward shall hold office for period of one year from the date of his nomination or election, as the case may be.

(4) Any dispute arising out of or in connection with, the election of a Shop Steward shall be referred to the Registrar whose decision shall be final and binding on all parties to the dispute.

(5) A Shop Steward shall act as a link between the workers and the employer, assist in the improvement of arrangements for the physical working conditions and production work in the shop section or department for which he is elected and help workers in the settlement of their problems either connected with work or with any such individual grievance of a workman as is referred to in sub-section (1) of section 46.

24. Joint Works Council.- (1) 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 per cent and the Convener of the Council shall be from the management.

(2) The employer's representatives on the Joint Works Council shall be from amongst the Directors or their nominees or senior executives and the workers' 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. (3) The Joint Works Council shall deal with the following matters, namely:-

(i) improvement in production, productivity and efficiency;

(ii) provision of minimum facilities for such of the workers employed through contractors as are not covered by the laws relating to welfare of workers;

(iii) promoting settlement of differences through bilateral negotiations;

(iv) promoting conditions of safety and health for the workers;

(v) encouraging vocational training within the establishment;

(vi) taking measures for facilitating good and harmonious working conditions in the establishment;

(vii) provision of educational facilities for children of workmen.

(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. Negotiations relating to differences and disputes.- (1) If at any time an employer or a collective bargaining agent finds that an industrial dispute has arisen or is likely to arise, the employer or, as the case may be, the collective bargaining agent may communicate his or its views in writing to the other party.

(2) On receipt of the communication under sub-section (1), the party receiving it shall try to settle the dispute by bilateral negotiations within fifteen days of the receipt of the communication or within such further period as may be agreed upon by the parties and, if the parties reach a settlement, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Conciliator and the authorities specified in clause (xxvi) of section 2.

(3) Where a settlement is not reached between the employer and the collective bargaining agent, the employer or the collective bargaining agent may, within fifteen days from the end of the period referred to in sub-section (2), serve on the other party to the dispute a notice of conciliation, in accordance with the provisions of this Ordinance.

26. Conciliator.- (1) The Provincial Government shall, by notification in the official Gazette, appoint as many persons as it considers necessary to be Conciliators for the purposes of this Ordinance and shall specify in such notification the area within which, or the class of establishments or industries in relation to which, each one of them shall perform his functions.

(2) The Federal Government may, be notification in the official Gazette, appoint as many persons as it considers necessary to act as Conciliators in such disputes as the National Industrial Relations Commission is competent to adjudicate and determine under this Ordinance.

(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.

27. Period of notice of conciliation.- The period of a notice of conciliation under sub-section (3) of section 25 shall be fifteen days.

28. Conciliation after notice. Where a party to an industrial dispute serves a notice of conciliation under sub-section (3) of section 25, it shall, simultaneously with the service of such notice, deliver a copy thereof to the Conciliator who shall proceed to conciliate in the dispute and to the Labour Court.

28. Proceedings before Conciliator.- (1) The Conciliator or the Board shall, as soon as possible, call a meeting of the parties to a dispute for the purpose of bringing about a settlement.

(2) The parties to a dispute shall be represented before the Conciliator or the Board by persons nominated by them and authorised to negotiate and enter into an agreement binding on the parties:

Provided that if, in the opinion of the Conciliator or the Board, the presence of the employer or any office bearer of the trade union connected with the dispute is necessary in a meeting called by him, he or, as the case may be, it shall give notice in writing requiring the employer or such office bearer to appear in person before him or it at the place, date and time, specified in the notice and it shall be the duty of the employer or the office bearer of trade union to comply with the notice.

(3) The Conciliator or the Board shall perform such functions in relation to a dispute before him or it as may be prescribed an may, in particular, suggest to either party to the dispute such concessions or modifications in its demand as are in the opinion of the Conciliator or the Board likely to promote an amicable settlement of the dispute.

(4) If a settlement of the dispute or of any matter in dispute is arrived at in the course of the proceedings before him or it, the Conciliator or the Board shall send a report thereof to the Provincial Government or the Federal Government, as the case may be, together with the memorandum of settlement signed by the parties to the dispute. (5) If no settlement is arrived at within the period of the notice of conciliation, the conciliation proceedings may be continued for such further period as may be agreed upon by the parties.

30. Arbitration.- (1) If the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the dispute to an arbitrator, and in case the parties agree, they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them.

(2) The arbitrator to whom a dispute is referred under sub-section (1) may be a person borne on a panel to be maintained by a Provincial Government or the Federal Government as the case may be or any other person agreed upon by the parties.

(3) The arbitrator shall give his award within a period of thirty days from the date on which the dispute is referred to him under sub-section (1) or such further period as may be agreed upon by the parties to the dispute.

(4)After the arbitrator has made the award, he shall forward a copy thereof to the parties and to a Provincial Government or the Federal Government, as the case may be, who shall cause it to be published in the official Gazette.

(5) The award of the arbitrator shall be final and no appeal shall lie against it and shall be valid for a period not exceeding two years or as may be fixed by the arbitrator.

31. Strike and lockout.- (1) If no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it to an arbitrator under section 30, the workmen, subject to a seven days notice to the employer, may go on strike or, as the case may be, the employer may declare a lock-out on the expiry of the period of the notice under section 27 or upon a declaration by the Conciliator or the Board that conciliation proceedings have failed, whichever is the later.

(2) The party raising a dispute may at any time, either before or after the commencement of a strike or local-out, make an application to the Labour Court for adjudication of the dispute.

(3) Where a strike or lock-out lasts for more than fifteen days, the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, and a Provincial Government, if it relates to any other dispute, may, by order in writing, prohibit the strike or lock-out;

Provided that the Federal Government may, with respect to a strike or lock-out relating to a dispute which the Commission is competent to adjudicate and determine and the Provincial Government, with the previous approval of the Federal Government may, with respect to any other strike or lock-out, by order in writing, prohibit a strike or lock-out at any time before the expiry of thirty days, if its is satisfied that the continuance of such a strike or lock-out is causing serious hardship to community or is prejudicial to the national interest;

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 a strike or lock-out, as the case may be, if the same, in the opinion of the Government concerned, is detrimental to the interest of the community at large.

(4)In any case in which the Federal Government or a Provincial Government prohibits a strike or lock-out it shall forthwith refer the dispute to the Commission or, as the case may be, the Labour Court.

(5) The Commission, or as the case may be, the Labour Court shall, after giving both the parties to the dispute an opportunity of being heard, make such award as it deems fit as expeditiously as possible but not exceeding thirty days from the date on which the dispute was referred to it;

Provided that the Commission, or as the case may be, the Labour Co