The IRO, 2002 promulgated as a part of the new labour policy has undoubtedly curtailed or adversely affected some of the rights available to workers which need to be restored or balanced somehow. But Pakistan is not the only country where such changes have occurred.

In a number of other countries, necessary adjustments and similar changes have taken place or are underway to meet the formidable pressures of the globalization of economies. It will therefore, be advisable to take stock of what is happening around before taking any steps in that direction.

If we look at the recommendations of the India’s second Labour Commission submitted to the government on June 29, 02, which the government of India has announced to implement in the current year, it will appear that the same considerations that have impelled us to reformulate our labour policy have also influenced the formulation of the said recommendations.

Recommending relaxation of restrictions on the closure of undertakings employing less than 300 workers and total withdrawal of the condition of prior permission of the government for retrenchment and lay-off, the Indian Labour Commission (ILC) observes: “in the new circumstances of global competition, it may not be possible for some undertakings to continue and meet the economic consequences of competition. In such circumstances one cannot compel the non-viable undertakings to continue to keep running”.

In India, permission of the government is required, at present, for the closure of an undertaking, or for the retrenchment of even a single worker in an undertaking, employing 100 or more workers. The commission has, however, recommended adequate compensation for the affected workers and devising of an equitable procedure for the redress of their grievances, if any, while implementing the above recommendation.

In Pakistan, the law still provides for seeking permission of labour court for the complete closure of an establishment as well as for termination of employment of more than 50 per cent of the workforce employed in an establishment employing 20 or more workers and there is no likelihood of any change in this requirement. An employer resorting to the closure of an establishment without such permission could be guilty of unfair labour practice under section 63 of the IRO, 02.

The ILC has also recommended that no worker should be kept continuously as a casual or temporary worker against a permanent post for more than two years. In Pakistan, a workman has to be appointed on permanent basis whether directly or through a contractor from the very first day with three months probation against a permanent job. It is only in the case of a job which is essentially of temporary nature likely to last for a limited period (may be more the nine months) and a project of definite duration that a worker can be kept as temporary worker or on work charged basis, for the duration of the job or project, as the case may be (1980 LLC 488) (2000 SCMR 879).

At present, a supervisor can be treated as non-workman under the Indian law only if he draws wages exceeding Rs1600 per month: But the ILC has recommended that irrespective of the rate of wages, a supervisor shall be excluded from the pale of workers and clubbed with those employed in managerial and administrative capacity.

In Pakistan, a supervisor was till now treated as a non-workman under the IRO, 1969 if he drew wages exceeding rupees eight hundred per month or performed functions mainly of managerial nature. But in the IRO, 02, recently promulgated, a supervisor, irrespective of his wages and functions, has been included in the pale of workers. The ILC has recommended that in all the labour laws a supervisor shall be taken out from the pale of workers whereas in a number of other laws in Pakistan he is already treated as a worker.

In India, the Contract Labour (Regulation & Abolition) Act, 1976 provides for the abolition of employment of contract labour on every job of perennial nature or on jobs which are already being performed by regular workers in the same or similar other establishments or on which substantial number of workforce is employed. The ILC while recommending the employment of contract labour to meet the seasonal demands of manpower even for perennial core jobs like production, and the giving of even perennial non-core services like canteen, watch & ward and cleaning etc on contract observes: “the commission is conscious of the fact that in the fast changing economic scenario and change in technology and management, which are entailed in meeting current challenges, there cannot be a fixed number of posts in any organisation for all time to come. Organisations must have the flexibility to adjust the number of the workforce based on economic efficiency.”

Under the Indian Contract Labour (Regulation & Abolition) Act 1976, the job contractor as well as the contractor through whom the workers are engaged have been primarily held responsible for the provision of all benefits to the workers employed by or through him. It is only when the contractor fails to allow such benefits that the principal employer becomes liable to allow the same to the workers and recover the cost thereof from the contractor. In Pakistan, there is no restriction on the employment of workers by or through contractor but in the case of workers employed through contractor, the principal employer was till now treated as an employer for the purpose of allowing benefits to such workers under most of the laws: Now, under the IRO, 02 the contractor has been treated as an employer in relation to the workers employed through him. But neither the contractor is required to be licensed nor the establishment in which the contract workers are working is required to be registered.

In India, the establishment in which the contract workers are working is required to be registered and the contractor is required to be licensed. In the absence of such registration and licensing the system will be open to a wide range of abuses. Likewise, in the absence of any restriction on the number of contractors engaged at a time by the principal employer, an employer may engage a number of contractors to avoid formation of trade unions by such workers.

It will be all the more easier because of the definition of the term “group of establishments” in section 2 (xiii) of the IRO, 02 which defines a group of establishments as establishments belonging to the same employer and industry. Since, the workers employed by different contractors will be the employees of different employers, they will not be entitled to have a common trade union. This is the main weak aspect of our law that needs to be reconsidered or properly addressed.

At present, there is no system of determination of CBA in India. The employer has to deal with all the registered trade unions in his organization. The Indian Commission has now recommended the determination of negotiating agent to be recognized by the employer on the basis of check-off system. If there are more than one trade unions in an establishment, the one having support of 66 per cent of workers based on the check off system will be recognized as the negotiating agent.

In the absence of such support, there will be a negotiating college having proportionate representation of all the unions in the organization having support of 25 per cent of the workforce determined on the basis of check-off system. The recommendations further say that recognition of the negotiating agent should be valid for four years to be co-terminus with the period of the settlement. In Pakistan, the law provides for the determination of collective bargaining agent on the basis of secret ballot to be held by the registrar after every three years in case there are more than one trade unions in an establishment.

In Pakistan, the term “wages” as defined by the principal enchantments and as interpreted by superior courts means basic pay plus all allowances paid to a worker on regular monthly basis on the fulfilment of the terms of contract of employment. The Indian Commission has that the wages should be divided in two components. One consisting of basic pay plus dearness allowance to be known as wages for the purpose of calculating social security, bonus and gratuity. The other comprising of basic pay plus dearness allowance plus all other allowances and payments to be called remuneration for all other purposes.

The ILC has recommended that matters pertaining to individual workers may be determined by taking recourse to grievance redressal committee, conciliation or arbitration/adjudication, by worker himself or by his trade union. Only collective disputes should be raised by the negotiation agent and resolved in the prescribed manner. In Pakistan, the law provides for the redress of an individual grievance arising out of a right guaranteed by law, award or settlement, by recourse to the process of adjudication in the prescribed manner. A collective dispute can be raised only by the CBA or the employer.

In Pakistan, the IRO, 02 provides that CBAs shall affiliate with national federations of their choice registered with the NIRC. Whether this condition constitutes clog on the freedom of association guaranteed by the ILO’s Convention 87 or Article 17 of our own Constitution needs authoritative pronouncement. The Indian Commission has also recommended that federations of trade unions and employers organisations shall be subjected to the same discipline as primary trade unions.

In Pakistan, the IRO 02 provides that in case termination of employment is found to be wrongful, the Labour Court may, instead of awarding reinstatement, award compensation equal to a maximum of thirty months basic pay plus house rent to the worker concerned. This could be in addition to back-benefits that are usually awarded when the termination is found wrongful.

It does not, however, affect the discretion of labour court to award reinstatement and back benefits in an appropriate case. The ILC has recommended that where a worker has been dismissed from service after proper and fair inquiry on charges of violence, sabotage, theft or assault, and if the Court comes to the conclusion that charges have been proved, then the Court shall have no power to order reinstatement of the worker.

The ILC has recommended that strike should be called only by the recognized negotiating agent and that too after it has conducted a strike ballot amongst all workers of whom at least fifty one percent support the strike. In Pakistan, there is no provision for ballot in such cases. The CBA has only to given seven days strike notice to the employer on failure of conciliation proceedings.

The ILC has recommended that there should be a national minimum wage to be revised once in five years. It has also recommended that provision should be made in law for issuance of appointment letters to the workers. The new labour policy in Pakistan provides for revision of minimum wages by the federal government after every three years. Provision for issuance of appointment letter to all categories of workers already exists in Standing Order 2-A of the West Pakistan Standing Orders Ordinance, 1968.

The ILC has recommended the constitution of bipartite grievance redressal committees at the enterprise level to deal with all kinds of grievances of workers including grievances arising out of dismissal and termination of services. The law in Pakistan provides for redressal of grievances concerning matters of right. first by the employer and then by the Labour Court in the prescribed manner.

The ILC has recommended the total withdrawal of the Essential Services Maintenance Act. In the case of public utility services, the commission has recommended that if 51 per cent of workers in a strike ballot vote in favour of strike, the strike shall be deemed to have taken place and the dispute shall be referred forthwith for compulsory arbitration. In Pakistan, there is no move for the withdrawal of the Essential Services Maintenance Act while in the case of public utility services, the IRO, 02 provides for the prohibition of strike or lock-out before or after its commencement and reference of the dispute to the Board of Arbitrators.

In Pakistan, the IRO, 02 has not brought any change in the provision allowing outsiders to become the office bearers of the trade unions. The ILC has also not made any definite recommendation in this regard but has simply said that it would have been desirable if the law had also provided a ceiling on the total number of unions of which an outsider can become member of the executives thereof.

Likewise, in Pakistan there is no change in law regulating the procedural aspects of dismissal, retrenchment and termination of employment. The law still requires the employer to explicitly state, in writing, the reason for dismissal, retrenchment and termination; to give one month’s notice or to pay wages in lieu thereof in case of termination and retrenchment; to issue charge sheet and hold inquiry in case of dismissal; to observe the principle of last come out without any exception in the case of retrenchment and to re-employ the retrenched workers if he proposes to employ workers in the same category within one year.

In India also, the procedure for dismissal is the same and the law still does not provide for statement of reason for termination or dismissal or retrenchment in writing but the Courts insist on it. Likewise, the Indian law still provides that in the case of retrenchment the employer shall ordinarily retrench the worker who was the last person employed in the category and for the re-employment of retrenched workers as and when the employer employs workers in the same category, may be after five years. As regards labour welfare, the ILC has recommended comprehensive measures for streamlining and enhancing the coverage and scope of welfare schemes under various laws. It has also recommended the formulation of an appropriate unemployment insurance scheme to be financed by tripartite contribution. Our labour policy too aims, though not so comprehensively, at promoting employees social security and social insurance programmes and strengthening of labour welfare institutions. It also provides for formulation of social insurance scheme for old age and health benefits on self generation/voluntary basis for all kinds of workers in the formal and informal sectors.

The most positive and welcome feature of Pakistan’s IRO, 2002 is that it spells out the rights and duties of the employers and workers. The employers’ rights inter alia include the right to manage their businesses and use their resources, including human resources, efficiently and effectively. Their obligations include respect for the rights of workers to employment, wages, decent living and better quality of life.

The rights of workers inter alia include the right to wages and the right of association and collective bargaining while their duties include to perform the assigned work to the best of their ability, to observe the norms of discipline and to co-operate with the employer in the efficient performance of the organization. These rights are enforceable in the sense that an employer can apply to the Labour Court under section 33 of the Ordinance for the enforcement of a right guaranteed to him by law and a worker can seek redress of a grievance under section 46 thereof in respect of any right guaranteed to him by any law. Failure to discharge a duty or obligation by either could be punishable under section 71 of the Ordinance.