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ORDINANCE NO. V OF 2011

INDUSTRIAL RELATIONS ORDINANCE, 2011

An Ordinance to consolidate and rationalise the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry

[Gazette of Pakistan, Extraordinary, Part-I, 18th July, 2011]

No. F. 2(1)/2011-Pub.—The following Ordinance Promulgated by the President is hereby published for general information:—

WHEREAS the Constitution of the Islamic Republic of Pakistan recognises the freedom of association as a fundamental right of the citizens;

AND WHEREAS the Islamic Republic of Pakistan has ratified ILO Convention No. 87 on Freedom of Association and Convention No. 98 on Right to Organise and Collective Bargaining;

AND WHEREAS it is expedient to consolidate and rationalise the law in Islamabad Capital Territory and at trans-provincial level, relating to formation of trade unions and federations of trade unions, determining the collective bargaining agents, regulation of relations between employers and workers, the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto;

AND WHEREAS both the National Assembly and the Senate are not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action;

Now, THEREFORE, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:—

CHAPTER I 

PRELIMINARY

1.  Short title, extent, application and commencement.—(1) This Ordinance may be called the Industrial Relations Ordinance, 2011.

(2)        Subject to sub-section (3), it extends to the whole of Pakistan.

(3)        It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province, but shall not apply to any person employed—

(a)        in the Police or any of the Defence Services of Pakistan or any services or installations exclusively connected with the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government;

(b)        in the administration of the State other than those employed as workmen;

(c)        as a member of the Security Staff of the Pakistan International Airlines Corporation or drawing wages in pay group not lower than Group V in the establishment of that Corporation as the Federal Government  may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf;

(d)        by the Pakistan Security Printing Corporation or the Security Papers Limited; and

(e)        by an establishment or institution for the treatment or care of sick, infirm, destitute or mentally unfit persons excluding those run on commercial basis.

(4)  It shall come into force at once.

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

(i)         "arbitrator" means a person appointed as such under Section 40;

(ii)        "award" means the determination by the Commission or Arbitrator of any industrial dispute or any matter relating thereto and includes an interim award;

(iii)       "Bench" and Full Bench" mean a Bench and Full Bench of the Commission;

(iv)       "collective bargaining agent" in relation to an establishment, group of establishments or industry, means the trade union of the workmen which under Section 19, is the agent of workmen in the establishment or, as the case may be, industry, in the matter of collective bargaining;

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

(vi)       "Commission" means the Industrial Relations Commission constituted under Section 53;

(vii)      "conciliation proceedings" means any proceedings before a conciliator;

(viii)     "Conciliator" means a person appointed as such under Section 36;

(ix)       "employer" in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employs workmen in the 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 management and control of the establishment;

            (c)        in relation to an establishment run by or under the authority of any department of the Federal Government, the authority appointed in this behalf or, where no authority is so appointed, the Head of the department;

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

                        Explanation.For the purpose of distinction from the category of "workers" or "workmen", officers and employees of a department of the Federal Government who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of "employers"; and

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

(x)        "establishment" means any office, firm, factory, society, undertaking, company, shop 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 in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places and except in Section 62 includes a collective bargaining unit, if any, constituted by any establishment or group of establishments;

(xi)       "executive" means the body, by whatever name called, to which the management of the affairs of a trade union is entrusted by its constitution;

                        (xii)      "Government" means the Federal Government;

(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 continues otherwise than in the provisions of this Ordinance;

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

(xvi)     "industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person;

(xvii)    "industry" includes any business, trade, calling, employment or occupation for production of goods or provisions of services in the Islamabad Capital Territory and falling in more than province, and excluding those set up exclusively for charitable purposes;

(xviii)   "industry-wise trade union" means a trade union having its membership in more than one province in a group of establishments owned by one employer;

(xix)     "inspector" means an inspector appointed under this Ordinance;

(xx)      "Labour Court" means a Labour Court established in a province;

(xxi)     "lock-out" means the closing of place of employment or part of such place, or the suspension, wholly or partly, of work 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 to accept certain terms and conditions of or affecting employment;

(xxii)    "officer" in relation to a trade union, means any member of the executive thereof but does not include an auditor or legal adviser;

(xxiii)   "organisation" means any organisation of workers or of employers for furthering and defending the interests of workers or of employers;

                        (xxiv)   "prescribed" means prescribed by rules;

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

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

(xxvii)  "Registrar" means a Registrar of trade unions appointed under Section 4;

(xxviii) "rules" and "regulations" mean rules and regulations made under this Ordinance;

(xxix)   "settlement" means a settlement arrived at in the course of a conciliation proceeding, and includes an agreement between an employer and his workmen where there is no Collective Bargaining Agent, or Collective Bargaining Agent, as the case may be, arrived at or in the course of any conciliation proceedings, where such agreement is in writing, has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the Government, the Conciliator and such other person as may be prescribed;

(xxx)    "strike" means a 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;

(xxxi)   "trade union" means any combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and employers, or workmen and workmen or employers and employers or for imposing restrictive conditions on the conduct of any trade or business, and includes a federation of two or more trade unions;

(xxxii)  "trans-provincial" means any establishment, group of establishments, industry, having its branches in more than one province;

(xxxiii) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, and, for the purpose of any proceedings 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 managerial or administrative capacity.

CHAPTER II 

REGISTRATION OF TRADE UNIONS

3.  Trade unions and freedom of association.—Subject to the provisions of this Ordinance and notwithstanding any other law for the time, being in force,—

(a)        workers, without distinction whatsoever, shall have the right to establish and, subject to the rules of the organisation concerned, to join international associations of their own choice without previous authorisation:

                        Provided that in the establishment where women are also employed the Trade Union shall include the women in the executive of the said trade union with the same proportion in which they are employed in the establishment:

                        Provided further that no worker shall be entitled to be a member of more than one trade union at any one time and on joining another union the earlier membership shall automatically stand cancelled;

(b)        employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join international associations of their own choice without previous authorisation;

(c)        every trade union and employers association shall frame its own constitution and rules to elect its representatives in full freedom to organise its administration and activities and to formulate its programmes; and

(d)        workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations and confederations of workers' and employers' organisations.

4.         Registrar of trade unions.—For the purpose of this Ordinance, the Government shall, by notification in the official Gazette, appoint the Registrar of Trade Unions who shall be assisted by one or more Joint Registrars.

5.         Powers and functions of Registrar.—The Registrar, and the Joint Registrars, as the case may be, shall have the following powers and functions:—

(a)        the registration of trade unions under this Ordinance and the maintenance of a register for the purpose;

(b)        to lodge, or authorize any person to lodge, complaints with the Commission for action, including prosecution, against trade unions, employers, workers or other persons for any alleged offence or any unfair labour practice or violation of any provision of the Ordinance or for expending the funds of a trade union in contravention of the provisions of its constitution;

(c)        the determination of the question as to which one of the trade unions in an establishment or an industry is entitled to be certified as the collective bargaining agent in relation to that establishment or industry;

(d)        to inspect the accounts and record of the registered trade unions, or investigate or hold such inquiry in the affairs of the trade unions as he deems fit either by himself or through any officer subordinate to him and to authorize him in writing in this behalf; and

(e)        such other powers and functions as may be prescribed.

6.         Application for registration.—Any trade union may, under the signature of its President and the Secretary, apply to the Registrar for registration of the trade union under this Ordinance:

Provided that there shall be at least two trade unions in an establishment.

7.         Requirements for application.—Every application for registration of Trade Union shall be made to the Registrar and 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 union;

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

            (iv)       statement of total paid membership;

            (v)        the name of the establishment or 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 union relates; and

            (vii)      in case of a federation of trade unions, the names, addresses and registration number of member-unions;

(b)        three 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 signature of the Chairman of the meeting;

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

(d)        in case of a federation of trade unions, a copy of the resolution from each of the constituent unions agreeing to become a member of the federation.

8.  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 objects for which the trade union has been formed;

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

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

                        Provided that the condition of being employed in any establishment or an industry as aforesaid shall not apply to the remaining twenty-five percent of the members of such executives;

(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 officers and members of the trade union;

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

(h)        the safe 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 officers and members of the trade union;

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

(j)         the manner of election of officers by the general body of the trade union and the term, not exceeding two years, for which an officer may hold office upon his election or re-election;

(k)        the procedure for expressing no confidence in any officer of the trade union; and

(l)         the meeting of the executive and of the general body of the trade union so that the executive shall meet at least once in every three months and the general body at least once a year.

(2)        Without prejudice to the provisions of sub-section (1), 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 industry with which the trade union is connected;

            Explanation.—For the purpose of this clause, a dismissed, terminated or retrenched worker, whose dismissal, termination or retrenchment is pending adjudication before a Court of competent jurisdiction, shall be deemed to be an employed worker of that establishment, 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-fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be.

9.         Registration.—(1) On receipt of application for registration, the Registrar shall ensure compliance of Sections 7 and 8 of this Ordinance, and issue the registration certificate in the prescribed form within seven days.

(2)        In case the application has been rejected or a certificate of registration has not been issued within a period of seven days as provided in sub-section (1), as the case may be, the trade union may appeal to the Commission who, for reasons to be stated in its judgment, may pass an order directing the Registrar to register the trade union and to issue a certificate of registration or may dismiss the appeal.

(3)        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 officers shall be notified by registered post by the trade union to the Registrar within fifteen days of such change.

(4)        The Registrar may refuse to register such change or alteration 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.

(5)        Subject to the provision of sub-section (4), every inclusion or exclusion of any constituent unit of a federation of trade unions shall be notified by registered post by the federation to the Registrar within fifteen days of such inclusion or exclusion.

(6)        In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under sub-section (4), the Registrar may, after satisfying himself that a dispute exists, hold fresh elections under his supervision.

10.       Certificate of registration.—The Registrar, on registering a trade union under Section 9, shall issue a certificate of registration in the prescribed form which shall be conclusive evidence that the trade union has been duly registered under this Ordinance.

11.       Cancellation of registration.—(1) Subject to other provisions of this section, the registration of a trade union may be cancelled by the Registrar if the trade union has—

(a)        contravened or has been registered in contravention of any of the provisions of this Ordinance or the rules;

(b)        applied for such cancellation or ceased to exist;

(c)        obtained registration by fraud or by misrepresentation of facts;

(d)        obtained less than ten percent of total votes polled in an election for determination of a Collective Bargaining Agent, or is not a contestant in such election;