(5)        In adjudicating and determining a grievance under sub-section (4), the Commission shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.

(6)        If a decision under sub-section (4) or an order under sub-section (5) given by the Commission or a decision in an appeal against such a decision or order is not given effect to or complied with within seven days or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to seventy-five thousand rupees, or with both.

(7)        No person shall be prosecuted under sub-section (6) except on a complaint in writing—

(a)        by the workman if the order or decision in his favour is not implemented within the period specified therein; or

(b)        by the Commission if an order or decision thereof is not complied with.

(8)        For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Commission.

(9)        Any collective bargaining agent or any employer may apply to the Commission for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement.

(10)      There shall be a Tripartite Council for review of grievances of workers in the Islamabad Capital Territory comprising not less than three members each of the workers, employers and the Government:

Provided that the representatives of the workers and the employers shall be nominated by the Government after consultation with registered trade unions and employers' organisations to be notified in the Official Gazette.

34.       Raising of industrial disputes.—(1) No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer;

(2)        Notwithstanding anything contained in this Ordinance, a federation of trade unions or federation may, if it is a collective bargaining agent, raise an industrial dispute affecting all employers or workers of the establishments represented by that federation and a decision of the Commission shall be binding on all such employers and workers.

(3)        No collective bargaining agent shall, at any time when a decision of the Commission in respect of any matter is effective, be entitled to raise a demand relating to that matter.

35.       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 either to the Works Council or to the other party and where the views are so communicated to the Works Council, a copy of the communication shall also be sent to the other party.

(2)        On receipt of the communication under sub-section (1) the Works Council or the party receiving it shall try to settle the dispute by bilateral negotiations within ten days of 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 mentioned in clause (xxx) of Section 2.

(3)        Where a settlement is not reached between the employer and the collective bargaining agent or. if the views of the employer or collective bargaining agent have been communicated under sub-section (1) to the Works Council, there is a failure of bilateral negotiations in the Works Council, the employer or the collective bargaining agent may, within seven days from the end of the period referred to in sub-section (2), Serve on the other party to the dispute a notice of lock-out or strike, as the case may be, in accordance with the provisions of this Ordinance.

36.  Conciliator.—The Commission may, appoint as many persons as it considers necessary to act as Conciliators under this Ordinance.

37.       Conciliation after notice of strike or lock-out.—Where a party to an industrial dispute serves a notice of strike or lock-out under sub-section (3) of Section 35, it shall, simultaneously with the service of such notice, deliver a copy thereof to the Conciliator and to the Commission.

38.       Proceedings before Conciliator.—(1) The Conciliator shall within fifteen days call a meeting of the parties to the dispute for the purpose of bringing about a settlement.

(2)        The parties to the dispute shall be represented before the Conciliator 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, the presence of the employer or any officer of the trade union connected with the dispute is necessary in a meeting called by him, he shall give notice in writing requiring the employer or such officer to appear in person before him at the place, date and time, specified in the notice and it shall be the duty of the employer or the officer of the trade union to comply with the notice.

(3)        The Conciliator shall perform such functions in relation to a dispute before him as may be prescribed and 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 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, the Conciliator shall send a report thereof to the Commission together with a memorandum of settlement signed by the parties to the dispute.

(5)        If no settlement is arrived at within the period of the notice of strike or look-out, the conciliation proceedings may be continued for such further period as may be agreed upon by the parties.

39.       Commencement and conclusion of proceedings.—(1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out is received by the Conciliator under sub-section (3) of Section 35.

(2) A conciliation proceeding shall be deemed to have concluded:–

(a)        where a settlement is arrived at, on the date on which a memorandum of settlement is signed by the parties to the dispute; and

(b)        where no settlement is arrived at—

            (i)         if the dispute is referred to an arbitrator under Section 40 on the date on which the arbitrator has given his award or otherwise; or

            (ii)        on the date on which the period of the notice of strike or lock-out expires.

(3)        Proceedings before the Commission shall be deemed to have commenced—

(a)        in relation to an industrial dispute, on the date on which an application has been made under Section 42 or Section 60, or on the date on which it is referred to the Commission by the Federal Government under Section 42 or Section 45; and

(b)        in relation to any other matter, on the date on which it is referred to the Commission.

(4)        Proceedings before the Commission in relation to a dispute referred to it under Section 42 or Section 45 or to a dispute raised under sub-section (2) Section 34, shall be deemed to have commenced on the date on which the reference is made to it or, as the case may be, the dispute is raised before it.

(5)        Proceedings before the Commission shall be deemed to have concluded on the date on which the decision is delivered under sub-section (5) of Section 42.

40.  Arbitration.—(1) If the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the dispute to an arbitrator. 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 the Commission 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 he has made an award, the arbitrator shall forward a copy thereof to the parties and to the Government for publication in the official Gazette.

(5)        The award of the arbitrator shall be final and no appeal shall lie against it.

(6)        The award shall be valid for a period not exceeding two years, as may be fixed by the arbitrator.

CHAPTER VII 

STRIKES AND LOCKOUT

41.       Notice of strike or lock-out.—The period of a notice of lock-out or strike given under sub-section (3) of Section 35 shall, be fourteen days.

42.       Strike and lock-out.—(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 40, the workmen may go on strike or, as the case may be, the employer may declare a lock-out, on the expiration of the period of the notice under Section 41 or upon a declaration by the Conciliator that the 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 lock-out make an application to the Commission for adjudication of the dispute.

(3)        Where a strike or lock-out lasts for more than thirty days, the Government, may by order in writing, prohibit the strike or lock-out:

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

(4)        In any case in which the Government prohibits a strike or lock-out, it shall forthwith refer the dispute to the Commission.

(5)        The Commission shall, after giving both the parties to the dispute an opportunity of being heard, make such order as it deems fit as expeditiously as possible but not exceeding thirty days from the date on which the dispute referred to it:

Provided that the Commission may also make an interim order on any matter in dispute:

Provided further that any delay by the Commission in making an order shall not affect the validity of any order made by it.

(6)  An award of the Commission shall be for such period as may be specified in the award which shall not be more than two years.

43.       Illegal strikes and lock-out.—(1) A strike or lock-out shall be illegal if—

(a)        it is declared, commenced or continued without giving to the other party to the dispute, in the prescribed manner, a notice of strike or lock-out or before the date of strike or lock-out specified in such notice, or in contravention of Section 46;

(b)        it is declared, commenced or continued in consequence of an industrial dispute raised in a manner other than that provided in Section 34;

(c)        it is continued in contravention of an order made under Section 42, Section 45, or Section 61 or sub-section (6) of Section 44; or

(d)        it is declared, commenced or continued during the period in which a settlement or award is in operation in respect of any of the matters covered by a settlement or award.

(2)  A lock-out declared in consequence of an illegal strike and a strike declared in consequence of an illegal lockout shall not be deemed to be illegal.

44.  Procedure in cases of illegal strikes or lock-out.—(1) Notwithstanding anything contained in any other provision of this Ordinance or in any other law for the time being in force, an Officer of the Commission not below the rank of Deputy Registrar, hereinafter in this section referred to as the Officer, may be assigned by the Commission the duty to make enquiries in such manner as he may deem fit into an illegal strike or illegal lock-out in an establishment and make a report to the Commission.

(2)  The officer may, for the purpose of enquiry under sub-section (1), enter with such assistance by the persons in the service of Pakistan, as he thinks fit, in an establishment, where he has reason to believe an illegal strike or lock-out to be in progress, and make such examination of the premises and plant and of any registers maintained therein and take on the spot or otherwise such evidence of persons and exercise such other powers as he may deem necessary for carrying out the purposes of this section.

(3)        The officer shall have authority to call any party to such dispute to his office or secure his presence in the establishment and shall also have the power to bind any party to the dispute to appear before the Commission.

(4)        Where a party to an illegal strike or lock-out, on being required or bound under this section to appear before the officer or the Commission, does not so appear, the officer or the Commission, as the case may be, may, besides taking such other action as may be admissible under this Ordinance, proceed ex-parte.

(5)        After receiving the enquiry report the Commission shall serve a notice on the employer and the collective bargaining agent or the registered trade union concerned with the dispute to appear before the Commission on a date which shall not be later than seven days.

(6)        The Commission may, within ten days following the day on which it receives a report under sub-section (1), and after considering the report and hearing such of the parties as may appear before it, order the strike to be called off or the lock-out to be lifted.

(7)        If the employer contravenes the order of the Commission under sub-section (6) and the Commission is satisfied that the continuance of the lock-out is causing serious hardship to the community or is prejudicial to the national interest, it may issue an order for the attachment of the establishment and for the appointment of an official receiver for such period as it deems fit, and such period may be varied from time to time.

(8)        The official receiver shall exercise the powers of management and may transact business, enter into contracts, give valid discharge of all moneys received and do or omit to do all such acts as are necessary for conducting the business of the establishment.

(9)        The Commission may, in appointing and regularizing the work of an official receiver exercise the powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908).

(10)      If the workers contravene the order of the Commission under sub-section (6), the Commission may pass orders of dismissal against all or any of the striking workers and, notwithstanding anything to the contrary contained in this Ordinance, if the Commission, after holding such inquiry as it deems fit, records its finding that any registered trade union has committed or abetted the commission of such contravention, the finding shall have the effect of cancellation of the registration of such trade union and debarring all officers of such trade union from holding office in that or in any other trade union for the un-expired term of their offices and for the term immediately following:

Provided that the Court may review its orders if good and sufficient cause is shown by an affected worker within seven days of such orders of dismissal.

45.       Strike or lock-out in public utility services.—(1) The Government, in the case of a strike or lock-out relating to—

(a)        an industrial dispute of national importance; or

(b)        an industrial dispute in respect of any of the public utility services which the Commission is competent to adjudicate and determine, may, by order in writing, prohibit a strike or lock-out at any time before or after the commencement of the strike or lock-out.

(2)  The provisions of sub-sections (4), (5) and (6) of Section 42 shall also apply to an order made under sub-section (1) above as they apply to an order made under sub-section (3) of that section.

46.       Prohibition of serving notice of strike or lock-out while proceedings pending.—No notice of strike or lock-out shall be served by any party to an industrial dispute during the pendency of any conciliation proceedings or proceedings before an Arbitrator or Commission in respect of any matter constituting such industrial dispute.

47.       Removal of fixed assets.—No employer shall remove any fixed assets of the establishment during the currency of an illegal lockout or a strike which is not illegal:

Provided that the Commission may, subject to such conditions as it may impose, cause to be removed any such fixed assets for safe custody to avoid damage to such assets due to flood, fire, catastrophe or civil commotion.

48.       Protection of certain persons.—(1) No person refusing to take part or to continue to take part in any illegal strike or illegal lock-out shall, by reasons of such refusal,-be subject to expulsion from any trade union or to any fine or penalty or to the deprivation of any right or benefit which he or his legal representatives would otherwise have been entitled, or be liable to be placed in any respect, either directly or indirectly, under any disability or disadvantage as compared with other members of the trade union.

(2)  Any contravention of the provisions of sub-section (1) may be made the subject matter of an industrial dispute, and nothing in the constitution of a trade union providing the manner in which any dispute between its executive and members, shall be settled shall apply to any proceedings for enforcing any right or exemption granted by sub-section (1). In any such proceeding, the Commission may, in lieu of ordering a person who has been expelled from membership of a trade union to be restored to membership, order that he be paid out of the funds of the trade union such sum by way of compensation or damages as the Commission thinks just.

CHAPTER VII 

AWARDS AND SETTLEMENTS

49.  Settlements and awards on whom binding.—(1) A settlement arrived at in the course of conciliation proceedings, or otherwise between the employer and the collective bargaining agent or an award of an arbitrator prescribed under Section 40, or an award or decision of the Commission delivered under Section 54 and Section 57 shall—

(a)        be binding on all parties to the industrial dispute;

(b)        be binding on all other parties summoned to appear in any proceedings before the Commission as parties to the industrial dispute, unless the Commission specifically otherwise directs in respect of any such party:

(c)        be binding on the heirs, successors or assignees of the employer in respect of the establishment to which the industrial dispute relates where an employer is one of the parties to the dispute; and

(d)        where a collective bargaining agent is one of the parties to the dispute, be binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date:

            Provided that, where a collective bargaining agent or a trade union performing the functions of a collective bargaining agent under Section 21 exists, the employer shall not enter into a settlement with any other trade union, and any contravention of this provision shall be deemed to be an unfair labour practice under Section 31.

(2)  A settlement arrived at by agreement between the employer and a trade union otherwise than in the course of conciliation proceedings shall be binding on the parties to the agreement.

50.       Effective date of settlement, award, etc.—(1) A settlement shall become effective–

(a)        if a date is agreed upon by the parties to the dispute to which it relates, on such date; and

(b)        if a date is not so agreed upon, on the date on which the memorandum of the settlement is signed by the parties.

(2)        A settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon for a period of one year from the date on which the memorandum of settlement is signed by the parties to the dispute and shall continue to be binding on the parties after the expiry of the aforesaid period until the expiry of two months from the date on which either party informs the other party in writing of its intention no longer to be bound by the settlement.

(3)        An order passed by the Commission shall, unless an appeal against it is preferred to the Full Bench, become effective on such date and remain effective for such period, not exceeding two years, as may be specified therein. The Arbitrator or the Commission, shall specify dates from which the award or decision on various demands shall be effective and the time limit by which it shall be implemented in each case:

Provided that if, at any time before the expiry of the said period, any party bound by an award or decision applies to the Commission for reduction of the said period on the ground that the circumstances in which the award or decision was made have materially changed, the Commission may, by order made after giving to the other party an opportunity of being heard, terminate the said period on a date specified in the order.

(4)        Notwithstanding the expiry of the period for which an award is to be effective under sub-section (3), the award shall continue to be binding on the parties until the expiry of two months from the date on which either party informs the other party in writing of its intention no longer to be bound by the award.

51.       Interpretation of settlement and awards.—(1) If any difficulty or doubt arises as to the interpretation of any provisions of an award or settlement, it shall be referred to the Full Bench constituted under this Ordinance.

(2)  The Full Bench to which a matter is referred under sub-section (1) shall after giving the parties an opportunity of being heard, decide the matter, and its decision shall be final and binding on the parties.

52.       Recovery of money due from an employer under settlement or award.—(1) Any money due from an employer under a settlement, or under an award or decision of the Arbitrator, the Commission may be recovered as arrears of land revenue or as a public demand if, upon the application of the person entitled to the money, the Commission so directs.

(2)        Where any workman is entitled to receive from the employer any benefit, under a settlement or under an award or decision of the Arbitrator, the Commission, which is capable of being computed in terms of money, the amount at which such benefit shall be computed may, subject to the rules, be determined and recovered as provided for in sub-section (1) and paid to the workman concerned within a specified date.

(3)        The Commission shall have the powers of Collector Grade-1 and shall exercise such powers of recovery as determined by it.

CHAPTER VIII 

NATIONAL INDUSTRIAL RELATIONS COMMISSION

53.       National Industrial Relations Commission.—(1) The Federal Government shall constitute a National Industrial Relations Commission.

(2)        The Commission shall consist of not less than ten full time members, including the Chairman.

(3)        The qualification for appointment as a member or as the Chairman of the Commission shall be such as may be prescribed.

(4)        The Chairman and other members of the Commission shall be appointed by the Government in the prescribed manner.

(5)        Two of the members shall be appointed in the prescribed manner to advise the Chairman, one to represent the employers and the other to represent trade unions and the federations of such trade unions.

(6)        The Chairman of the Commission may, in addition to the representatives of workers appointed to the Commission, co-opt, in cases where he deems it necessary, from amongst workers belonging to federations such representatives of workers as he may deem fit.

(7)        The worker's representative co-opted under sub-section (6) shall be entitled to such honorarium as may be prescribed.

54.  Functions of the Commission.—The following shall be the functions of the Commission, namely—

(a)        to adjudicate and determine a industrial dispute in the Islamabad Capital Territory to which a trade union or a federation of such trade unions is a party and which is not confined to matters of purely local nature and any other industrial dispute which is, in the opinion of the Government, of national importance and is referred to it by that Government;

(b)        to register trade unions and industry-wise trade unions of an establishment or group of establishments in the Islamabad Capital Territory, and federations of such trade unions;

(c)        to determine the collective bargaining agents amongst trade unions and industry-wise trade unions in the Islamabad Capital Territory and federations of such trade unions;

(d)        to try offences punishable under—

            (i)         Section 67 other than sub-sections (1) and (6) thereof; and

            (ii)        any other section, in so far as they relate to employers or workers in relation to a trade union or an industry-wise trade union in theIslamabad Capital Territory, and a federation of such trade unions, or officers of such union or federation;

(e)        to deal with cases of unfair labour practices specified in Sections 31 and 32 on the part of employers, workers, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under Section 33 or sub-section (9) Section 33 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under Section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice;

(f)        to advise the Government, trade unions and industry-wise trade unions in the Islamabad Capital Territory, and federations in respect to the education of workers in the essentials of trade unionism, including education in respect of their right and obligations, and to secure the provision of facilities required thereof, and to apportion the cost thereof between the Government, trade unions and federations of such trade unions, and the employers, in such manner as may be considered equitable by the Commission, subject to the approval of the Government;

(g)        to take measures calculated to prevent an employer or workman from committing an unfair labour practice in such manner as may be determined by regulations;

(h)        to deal with cases of individual grievance in the manners prescribed in Section 33.

(i)         to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory; and

(j)         such other powers and functions as the Government may, by notification in the official Gazette, assign to it from time to time.

55.  Benches of the Commission, etc.—(1) The Chairman shall exercise general superintendence over its affairs.

(2)        For the efficient performance of the functions of the Commission, the Chairman shall constitute—

(a)        a Full Bench of the Commission which shall consist of not less than three members of the Commission; and

(b)        as many other Benches of the Commission consisting of one member of the Commission, as he may deem fit.

(3)        The Benches shall—

(a)        adjudicate and determine an industrial dispute or any other matter which has been referred to, or brought before it under this Ordinance;

(b)        enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Federal Government.

(c)        try offences under this Ordinance; and

(d)        exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law:

                        Provided that, in the performance of those functions and in the exercise of those powers, the Benches shall, unless otherwise provided in this Ordinance, follow the procedure laid down in the regulations.

(4)        If any member of the Commission is absent from, or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one members of which he is a member, the Chairman may reconstitute the Bench.

(5)        No act, proceedings, decision, or award of the Commission or Bench shall be invalid or be called in question merely on the ground of absence or of the existence of a vacancy in or any defect in the constitution of the Commission or Bench.

56.  Resolution of difference of opinion.—(1) If the members of a Bench differ in opinion as to the decision to be given on any point,–

(a)        the point shall be decided according to the opinion of the majority, if there is a majority; and

(b)        If the members are equally divided, they shall state, the point on which they differ and the case shall be referred by them to the Chairman for hearing on such point by one or more of the other members of the Commission, and such point shall be decided according to the opinion of the majority of the members of the Commission who have heard the case, including those who first heard it:

                        Provided that if, upon any matter requiring the decision of a Bench which includes the Chairman of the Commission as one of its members, there is a difference of opinion among its members and the members so constituting the Bench are equally divided, the opinion of the Chairman shall prevail and the decision of the Bench shall be expressed in terms of the views of the Chairman.

(2)  Any order or decision made, award given, sentence passed, power exercised, functions performed or proceedings taken by any Bench of the Commission in accordance with this Ordinance and the order constituting the Bench shall be deemed to be the order or decision made, award given, sentence passed, power exercised, functions performed or proceedings taken, as the case may be, by the Commission.

Explanation.—In this section, the expression "The Chairman of the Commission" includes such member of the Commission to be known as Senior Member as the Chairman may nominate to perform the functions, and exercise the powers of the Chairman during his absence.

57.  Additional powers of the Commission.—(1) In addition to powers which the Commission has under this Ordinance—

(a)        the Commission shall have power to punish any person who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members in relation to proceedings of the Commission into hatred or contempt, or does anything which, by law, constitutes contempt of Court, with simple imprisonment which may extend to six months or with fine which may extend to fifty thousand rupees, or with both; and

(b)        for the purposes of any investigation, enquiry or adjudication to be made by the Commission under this Ordinance, the Chairman or any member of the Commission may at any time between the hours of sunrise and sunset, and any other person authorised in writing by the Chairman or any member of the Commission in this behalf may, after he has given reasonable notice, enter any building, factory, establishment, workshop or other place or premises whatsoever and inspect the same or any work, machinery, appliance or article therein or interrogate any person therein in respect of anything situated. Therein or any matter relevant to matters before the Commission; and

(2)        The Commission may, on the application of a party, or of its own motion,–

(a)        initiate prosecution, trial or proceedings, or take action, with regard to any matter relating to its functions;

(b)        withdraw from a Labour Court of Province any application, proceedings or appeal relating to unfair labour practice, which fall within jurisdiction of the Commission.

(c)        grant such relief as it may deem fit including interim injunction.

(3)        For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may—

            (a)        proceed directly with the case;

            (b)        ask the Provincial Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report; or

            (c)        refer the case to a Provincial Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal.

(4)        The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant.

(5)        Save as provided in sub-section (4) no Registrar, Labour Court or Labour Appellant Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission:

Provided that no Court, including Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.

Explanation.—The expressions "industry-wise trade union" and "federation of such trade unions" refer to a trade union membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province.

58.  Appeals.—(1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, may, within thirty days of such award, decision, sentence or order prefer an appeal to the Commission.

(2)  An appeal preferred to the Commission under sub-section (1) shall be disposed of by the Full Bench of the Commission which shall—

(a)        if the appeal is from an order determining and certifying a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order.

(b)        if the appeal relates to any other matter, the Full Bench may, confirm, set aside, vary or modify the decision or sentence passed and shall exercise all the powers required for the disposal of an appeal.

(c)        The decision of the Full Bench shall be delivered as expeditiously as possible, within a period of sixty days following the filing of the appeal, provided that such decision shall not be rendered invalid by reasons of any delay in its delivery.

(d)        The Full Bench may, on its own motion at any time, call for the record of any case or proceedings under this Ordinance in which a Bench within its jurisdiction has passed an order for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as it thinks fit:

                        Provided that no order under this sub-section shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard.

(3)        If, in an appeal referred to it against the order of the Bench directing the re-instatement of a workman, the Full Bench may make an order staying the operation of the order of the Bench.

(4)        The Full Bench shall decide such appeal within twenty days of its being preferred:

Provided that, if such appeal is not decided within the period aforesaid, the stay order of the Full Bench shall stand vacated on the expiration of that period.

59.       Finality of order.—No Court shall entertain any plea as to the jurisdiction of the Commission or as the legality or propriety of anything done or purporting to be done by the Commission or any of its Benches, and no order, decision, judgment or sentence of the Commission shall be called in question in any manner, whatsoever, in or before any Court or other authority.

60.       Enforcement of guaranteed rights.—Any collective bargaining agent or any employer may apply to the Commission for the enforcement of any right guaranteed or secured to it or him or to the workers collectively by or under any law, award, settlement or decision.

61.       Powers of the Commission to prohibit strike, etc.—(1) When a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time when, in respect of such industrial dispute, there is made to, or is pending before, the Commission, an application under sub-section (9) Section 33, the Commission may, by an order in writing prohibit continuance of the strike or lock-out.

(2)  When an appeal in respect of any matter arising out of an industrial dispute is preferred to the Full Bench under Section 55, the Full Bench may, by an order in writing, prohibit continuance of any strike or lock-out in pursuance of such industrial dispute which had already commenced and was in existence on the date on which the appeal was preferred.

62.  Determination, etc., of collective bargaining unit.—(1) Where the Commission, on an application made in this behalf, by a trade union of Workmen or a federation of such trade unions, or on a reference made by the Federal Government, after holding such inquiry as it deems fit, is satisfied that for safeguarding the interest of the workmen employed in an establishment or group of establishments belonging to the same employer and the same industry, in relation to collective bargaining, it is necessary, just and feasible to determine one or more collective bargaining units of such workmen in such establishment or group, it may, having regard to the distribution of workers, existing boundaries of the components of such establishment, or group, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors,—

(a)        determine and certify one or more collective bargaining units in such establishment or group;

(b)        Specify the modifications which, in consequence of the decision under this section, will take effect in regard to the registration of the trade unions and federations of trade unions affected by such decision and certification of collective bargaining agents among such unions and federations, nomination or election of shop stewards, and workers' representatives for participation in the management of the factories, if any, affected by such decision;

(c)        specify the date or dates from and the period, for which all or any of such changes shall take effect:

                        Provided that the date so specified shall not be a date falling within the period of two years specified in sub-section (11) of Section 19, in its application to a collective bargaining agent certified in respect of an establishment or establishments:

                        Provided further that, after the receipt of a reference for determination of a collective bargaining unit, the Commission may stop or prohibit the proceedings to determine collective bargaining agent under Section 19 for any establishment or group of establishments which is likely to be affected by a decision under this section,

(d)        take such measures or issue such directions to the Registrar as may be necessary to give effect to such modifications; and

(e)        determine and certify a collective bargaining agent for each such unit in accordance with Section 19 insofar as applicable and with the necessary modifications, if such a unit relates to more than one province, or direct the Registrar to take such action, if such a unit relates to the Islamabad Capital Territory.

(2)        Where the Commission issues any directions to the Registrar under this section, the Registrar shall comply with them within such period as the Commission may from time to time determine.

(3)        After the certification of a collective bargaining unit, no trade union shall be registered in respect of that unit except for the whole of such unit and no certification or proceedings for determination of collective bargaining agent under Section 19 shall take place for a part of a collective bargaining unit or a group of collective bargaining units.

63.       Certain matters to be kept confidential.—Any information obtained by a Registrar, Conciliator, Arbitrator or Commission in the course of any investigation or inquiry as to a trade union or as to any individual business (whether carried on by a person, firm or company) which is not available otherwise than through the evidence given before such authority shall not be included in any report, award or decision under this Ordinance, if the trade union, person, firm, or company in question has made a request in writing to the authority that such information shall be treated as confidential, nor shall such proceedings disclose any such information without the consent in writing of the Secretary of the trade union or the person, firm or company in question, as the case may be:

Provided that nothing contained in this section shall apply to disclosure of any such information for the purpose of a prosecution under Section 193 of the Pakistan Penal Code (Act XLV of 1860).

64.       Conditions of service to remain unchanged while proceedings pending.—(1) No employer shall, while any conciliation proceedings or proceedings before an Arbitrator or the Commission in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of such conciliation proceedings, or of the proceedings before an arbitrator, as the case may be, nor shall he, save with the permission of the Conciliator, the Arbitrator or the Commission, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.

(2)  Notwithstanding anything contained in sub-section (1), an officer of a registered trade union shall not, during the pendency of any proceedings referred to in sub-section (1), be discharged, terminated, dismissed or otherwise punished for misconduct, except with the previous permission of the Commission. However, the terms and conditions of employment secured by the workers through collective bargaining agreements, awards and decisions of Courts shall continue to be binding upon the parties until revised for betterment of workers.

65.       Representation of parties.—(1) A workman who is a party to an industrial dispute shall be entitled to be represented in any proceedings under this Ordinance by an officer of a collective bargaining agent and subject to the provisions of sub-section (2) and sub-section (3) any employer who is a party to an industrial dispute shall be entitled to be represented in any such proceedings by a person duly authorised by him.

(2)        No party to an industrial dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Ordinance.

(3)        A party to an industrial dispute may be represented by a legal practitioner in any proceedings before the Commission, or before an Arbitrator, with the permission of the Commission or the Arbitrator, as the case may be.

66.       Power to make regulations.—(1) Subject to the provisions of this Ordinance, the Commission may make such regulations relating to its procedure and the performance of its functions as it may deem fit.

(2)  In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely—

(a)        registration of trade unions and industry-wise trade unions in the Islamabad Capital Territory and trans provinces, and federations of such trade unions and the procedure, for such registration;

(b)        determination of collective bargaining units;

(c)        determination of collective bargaining agent from amongst the industry-wise trade unions, federations of such trade unions and the procedure thereof;

(d)        procedure, including rules of evidence, for adjudication of industrial dispute;

(e)        procedure, including rules of evidence, for trial of offences;

(f)        procedure for dealing with unfair labour practices;

(g)        superintendence of the Chairman over the affairs of the Commission;

(h)        forms of registers, processes and returns in respect of matters relating to the functions of the Commission; and

(i)         fixing of places and times of its sitting and deciding whether to sit in public or in private.

CHAPTER IX 

PENALTIES AND PROCEDURES

67.  Penalty for unfair labour practices.—(1) Whoever contravenes the provisions of Section 17 shall be liable to imprisonment which may extend to fifteen days or fine which may extend to ninety days thirty thousand rupees, or both.

(2)        Whoever contravenes the provisions of Section 31 shall be liable to imprisonment which may extend to thirty days or fine which may extend to fifty thousand rupees, or both.

(3)        Whoever contravenes the provisions of Section 32, other than those of clause (d) of sub-section (1) thereof, shall be liable to imprisonment which may extend to thirty days or fine which may extend to twenty thousand rupees, or both.

(4)        An officer of a trade union, a workman or person other than a workman who contravenes or abets the contravention of the provisions of clause (d) of sub-section (1) of Section 32 shall be liable to imprisonment which may extend to thirty days or fine which may extend to thirty thousand rupees, or both.

(5)        Where the person convicted of an offence under sub-section (4) is an officer of a trade union, the Commission may, in addition to any other punishment which it may award to such person under that sub-section, direct that he shall cease to hold the office of such officer and be disqualified from holding any office in any trade union during the term immediately following the term in which he so ceases to hold office.

(6)        Whoever contravenes the provisions of Section 47 shall be liable to imprisonment which may extend to thirty days or fine which may extend to seventy-five thousand rupees, or both.

(7)        Nothing in this Ordinance shall be deemed to exclude the jurisdiction of a Labour Court of a province or the Court of a Magistrate to try a case under this section if it is authorised to do so by general or special order of the Commission.

68.       Penalty for committing breach of settlement.—Whoever commits any breach of any term of any settlement, award or decision which is binding on him under this Ordinance shall be punishable—

(a)        for the first offence, with imprisonment which may extend to thirty days or fine which may extend to thirty thousand rupees, or with both; and

(b)        for each subsequent offence, with fine which may extend to seventy-five thousand rupees.

69.       Penalty for failing to implement settlement, etc.—Whoever wilfully fails to implement any term of any settlement, award or decision which is his duty under this Ordinance to implement shall be punishable with imprisonment which may extend to fifteen days or a fine which may extend to thirty thousand rupees, or with both and, in the case of continuing failure, with a further fine which may extend to five thousand rupees for every day after the first during which the failure continues.

70.       Penalty for false statement, etc.—Whoever wilfully makes or causes to be made in any application or other document submitted under this Ordinance or the rules made thereunder, any statement which he knows or has reason to believe to be false, or wilfully neglects or fails to maintain or furnish any list, document or information he is required to maintain or furnish, under this Ordinance or the rules made thereunder shall be punishable with imprisonment which may extend to fifteen days or fine which may extend to seventy-five thousand rupees, or with both.

71.       Penalty for discharging officer of trade union in certain circumstances, etc.—Any employer who contravenes the provision of Section 64 shall be punishable with imprisonment which may extend to fifteen days or fine which may extend to thirty thousand rupees, or with both.

72.       Penalty for embezzlement or misappropriation of funds.—Any officer or any employee of a registered trade union, guilty of embezzlement or misappropriation of trade union funds, shall be liable to imprisonment which may extend to thirty days and shall also be liable to a fine which shall not exceed the amount found by the Court to have been embezzled or misappropriated. Upon realisation, the amount of fine shall be reimbursed by the Court to the trade union concerned.

73.       Penalty for obstructing inspector.—Whoever wilfully obstructs an inspector in the exercise of any power under Section 29, or fails to produce on demand by an inspector any register or other document in his custody required by him under the provisions of this Ordinance, or conceals or prevents any worker in an establishment from appearing before or being examined by an inspector, shall be punishable with fine which may extend to seventy-five thousand rupees.

74.       Penalty for contravening Section 27 or Section 28, etc.—(1) Whoever contravenes the provisions of Section 27 or Section 28 shall be punishable with imprisonment which may extend to fifteen days or fine which may extend to one hundred thousand rupees, or with both.

(2)  No Court shall take cognisance of any offence punishable under sub-section (1) except upon a complaint in writing made by the Registrar.

75.       Penalty for other offences.—Whoever contravenes, or fails to comply with, any of the provisions of this Ordinance shall, if no other penalty is provided by this Ordinance for such contravention or failure, be punishable with fine which may extend to ten thousand rupees.

76.       Offences to be non-cognisable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) no police officer shall be competent to arrest without warrant an employer or a worker for an offence under this Ordinance.

77.       Offences by corporation.—Where the person guilty of any offence under this Ordinance is a company or other body corporate, every director, manager, secretary or other officer or agent thereof shall, unless he proves that the offence was committed without his knowledge or consent or that he exercised all due diligence to prevent the commission of the offence, be deemed to be guilty of such offence:

Provided that, where a company has intimated to Government in writing the name of any of its directors resident in Pakistan whom it has nominated for the purpose of this section and the offence is committed while such director continues to be so nominated, only such, director shall be so deemed to be guilty of such offence.

78.       Trial of offences.—Save as provided in this Ordinance, no Court other than a Labour Court or that of a Magistrate of the first class, as the case may be, shall try any offence punishable under this Ordinance.

79.       Indemnity.—No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Ordinance or any rule.

CHAPTER X 

SUPPLEMENTAL

80.       Conformity with Ratified International Conventions.—The Government may co-ordinate with the provinces before enacting any law or rules for the effective enforcement of obligations of the State to international labour-related and employer- related Conventions so ratified by the State and in case of difference of opinion, shall refer such matter, to the Council of Common Interests for decision.

81.       Law of conspiracy limited in application.—No officer or member of a registered trade union or a collective bargaining agent as certified by the Registrar shall be liable to punishment under sub-section (2) of Section 120-B of the Pakistan Penal Code, 1860 (XLV 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, unless the agreement is an agreement to commit an offence, or otherwise violates any other law for the time being in force.

82.       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 a collective bargaining agent or any officer or member thereof in respect of any action done in contemplation or furtherance of an industrial dispute to which the trade union is a party 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 his capital or of his labour as he desires.

(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 good faith 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.

83.       Enforceability of agreement.—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 voidable 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.

84.       Registrar, etc., to be public servants.—A Registrar, a Conciliator, the Chairman and a Member of the Commission shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code (Act XLV of 1860).

85.       Limitation.—The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply in computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance.

86.       Power to make rules.—(1) The Government may make rules for carrying out the purposes of this Ordinance.

(2)  Rules made under this section may provide that a contravention thereof shall be punishable with fine which may extend to ten thousand rupees.

87.       Ordinance to override other laws.—The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.

88.       Repeal and savings.—The Industrial Relations Act, 2008 (IV of 2008), having been repealed by virtue of sub-section (3) of Section 87 thereof, notwithstanding the repeal of the said Act, hereinafter to be called the repealed Act, and without prejudice to the provisions of Sections 6 and 24 of the General Clauses Act, 1897 (X of 1897)—

(a)        every trade union of an establishment or industry located in the Islamabad Capital Territory, or in more than one province and existing immediately before the commencement of this Ordinance, which was registered under the repealed Act shall be deemed to be registered under this Ordinance and its constitution shall continue in force until altered or rescinded;

(b)        anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Act shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Ordinance; and

(c)        any document referring to the repealed Act relating to industrial relations shall be construed as referring to the corresponding provisions of this Ordinance.

89.       Former registration offices, officers, etc., to continue.—(1) The offices existing at the commencement of this Ordinance for registration of trade unions shall be continued as if they had been established under this Ordinance.

(2)        Any person appointed to any office under, or by virtue of the provisions of the repealed Act shall be deemed to have been appointed to that office under or by virtue of this Ordinance.

(3)        Any books of accounts, book, paper, register or document kept under the provisions of the repealed Act relating to companies shall be deemed to be part of the books of accounts, book, paper, register or document to be kept under this Ordinance.

90.       Removal of difficulties.—If any difficulty arises in giving effect to any provisions of this Ordinance, the Government may, by notification in the official Gazette, make such order, not inconsistent with the provisions, of this Ordinance, as may appear to it to be necessary for the purpose of removing the difficulty:

Provided that no such power shall be exercised after the expiry of six months from the coming into force of this Ordinance.

91.       Rights and duties of employers and workers.—The employers and workers shall within the bounds of this Ordinance and other laws for the time being in force shall abide by a code of conduct to respect their rights and duties in accordance with the guidelines in Schedule II.

SCHEDULE I

PUBLIC UTILITY SERVICES

[See Section 2(xxv)]

1.         The generation, production, manufacture, or supply of electricity, gas, oil or water to the public.

2.         Any system of public conservancy or sanitation.

3.         Hospitals and ambulance services.

4.         Fire-fighting service.

5.         Any postal, telegraph or telephone service.

6.         Railways and Airways.

7.         Ports.

 

8.         Watch and Ward Staff and security services maintained in any establishment.

 

SCHEDULE II

 

RIGHTS AND DUTIES OF EMPLOYERS AND WORKERS

[See Section 91]

Rights and Duties of Workers and Employers

(1)  Workers and employers to respect each others' rights: Without prejudice to the provision of this Ordinance and any other labour law in vogue, workers and employers in each establishment will respect each others' rights and the rights of the enterprise to reasonable returns on investments and to expansion and growth. Such rights, among other, will include the following.

Employers' Rights and Duties

a.         Right to conduct business.—The employer has the right to manage, control and use enterprise property and conduct its business in any manner considered prudent and satisfactory by it.

b.         Right to manage.—The employer has the right to manage the enterprise effectively and efficiently by finding the best use of its available resources, including human resource, in most prudent and fruitful manner in the general interest of the enterprise.

c.         Duties of the Employer.—(i) While exercising the right to conduct business and the right to manage the enterprise, it will be duty of the employer to act in accordance with the principles and guidelines provided under the law.

(ii)        The employe will implement all laws, including labour laws, in letter and spirit.

(iii)       The employer will protect and safeguard the interest and welfare of its workers to obtain maximum productivity and output to the mutual advantage of the enterprise.

(iv)       The Employer will respect the workers' rights to decent work, wages, decent living and quality of life, subject to the resources of the enterprise.

Workers' Rights and Duties

a.         Right to work, wage and welfare.—It is the right of a worker to work according to the job assigned and to receive wages as per agreed terms and conditions of employment and to such welfare benefits and safety measures as one is entitled to according to law, agreement settlement and/or award.

b.         Right to Freedom of association and collective bargaining and other rights secured or guaranteed under the Industrial Relations Ordinance, 2011, and other laws.—Worker has unfettered right to enjoy the benefits guaranteed to him under the law, rules, settlement, agreement, award and in line with the principles of social justice.

c.         Duties of the Workers.—(i) Worker will perform their duties, as assigned by the employer or his representatives, according to his best ability with due diligence, care, honesty and commitment.

(ii)        Worker will fully observe norms of organisational discipline.

(iii)       Worker, in exercise of his right, will fully respect the rights of the employer and will fully cooperate with the employer in efficient conduct of the business of the establishment.

d.         Mutual obligations of employers and workers.—(i) Both employers and workers will promote and foster an atmosphere of trust confidence and understanding for each others' viewpoint and will at the first place make every effort not to let conflict arise among their relationship and if and when a conflict arises they will make every effort to resolve the same by bilateral negotiation at the establishment level.

(ii)        Both employers and workers will accept the same degree of responsibility for industrial relations as for other functions within their respective establishment and will establish formal and informal climate of communication and social dialogue on at the establishment level for discharging the responsibility.

(iii)       Both employers and workers will strive to develop good industrial relations within the framework of efficiency in the establishment.

(iv)       Both employers and workers take all reasonable steps to ensure compliance with agreements and agreed procedures so that the objectives of productivity and growth are served in atmosphere of industrial peace.

(v)        Both employers and workers in their mutual interaction will demonstrate mutual respect for each other and will not indulge in any act or insinuation to show person disrespect in any form in keeping with the Islamic tradition of love, fraternity, brotherhood and accepted social norms and civilized society.

e.         Incentives and Recognition for Promoting Good Industrial Relations.—Such establishment, which maintains a track record of good industrial relations through bilateral efforts of employers and workers and their representative organisations in the establishment, shall be recognised by the Government as a "Model Organisation in Industrial Relations" to be determined on the basis of such criterion and in such manner as may be prescribed in the rules to be provided for the purpose. Such recognition shall be in the form of a Certificate prescribed for the purpose which will entitle the establishments and their unions to inscribe the word "Model Organisation in Industrial Relations" on their letter-heads and official logo and monograms.

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