In the year 1969, the Industrial Relations Ordinance 1969 (IRO 1969) was promulgated by repealing numerous statutes namely East Pakistan Trade Unions Act 1965, East Pakistan Labour Disputes Act 1965, West Pakistan Industrial Disputes Ordinance 1968 and the West Pakistan Trade Union Ordinance 1968 in terms of section 67 of IRO 1969. This statutory exercise came into force to amend and consolidate the laws relating to formation of trade unions, the regulation of relations between employers and workmen and to avoid and settle differences or disputes arising between them or matters connected therewith or ancillary thereto and in the national interest of country, to achieve the uniformity through Federal legislation.
Later on, by means of Labour Laws (Amendment) Ordinance 1972, section 22-A of IRO 1969 was inserted whereby National Industrial Relations Commission (NIRC) was constituted for settlement of disputes between the workers and employers. In order to provide mechanism for the functioning of NIRC, in terms of section 22F of IRO 1969, the NIRC Regulations 1973 were framed.
IRO 1969 was repealed by Industrial Relations Ordinance 2002 (IRO 2002), but trade unions registered under the repealed Ordinance were given protection. Later on, Industrial Relations Act 2008 was promulgated which repealed IRO 2002. In terms of section 87 of IRA 2008, the trade unions registered under the repealed Ordinance were deemed to be registered under IRA 2008 and continued to be in force until altered and rescinded. Section 87(3) provided that the Act would, unless repealed earlier, stands repealed on 30th April 2010.
No legislation was done at Federal level before 30th April 2010 so as to either supersede or to extend the operation of IRA 2008. In the meantime, ‘the Parliament passed the 18th Amendment on 20/04/2010 whereby concurrent legislative list was omitted and all the matters mentioned therein came within the jurisdiction of the provinces for the purpose of making legislation and dealing with the said laws’.
* Punjab Industrial Relations Ordinance 2010 was promulgated on 13/06/2010 which was repealed by Punjab Industrial Relations Act 2010 on 09/12/2010.
* Industrial Relations (Revival and Amendment) Act 2010 was promulgated by the Province of Sindh on 05/07/2010.
* Khyber Pakhtunkhwa Industrial Relations Ordinance 2010 was promulgated on 14/07/2010.
* Balochistan Industrial Relations Ordinance 2010 was promulgated on 22/07/2010 which was repealed by Balochistan Industrial Relations Act 2010.
The matters relating to welfare of labour and trade unions were mentioned in the Concurrent Legislative list at Items No. 26 and 27, as such, the Federal Government as well as Provincial Governments both were competent to make legislation in that behalf.
It has been held by the Honourable Supreme Court of Pakistan in the Constitutional Petition No. 24 of 2011 that:
“Furthermore by means of Eighteenth Constitutional Amendment the Concurrent Legislative list was abolished and Federal Government had lost the power to legislate regarding Labour Welfare and Trade Unions, which subject devolved upon the provinces. It is to be noted that presently, no Federal Legislation can be made on Labour matters except recourse to the provisions of Article 144(1) of the Constitution, which provides that if one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal List in the Fourth Schedule, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, but any Act so passed may, in respect to the province to which it applies, be amended or repealed by Act of the Assembly of that Province. The Trade Unions, which are operating within one province, can be dealt with under the Labour Laws enacted in that province and the workman can also avail the appropriate remedy provided under the said legislation”.
“In the Indian jurisdiction, Trade Unions and Industrial Labour Disputes are mentioned at Sr. No. 22 of the List-III of the Seventh Schedule of the Constitution of India, which forms the joint domain of both the State Governments and Union Territory of India as well as the Central Government of India under those subjects, therefore, the Trade Unions Act 1926 has been promulgated by the Parliament to deal with the matter relating to registration of trade unions and trade disputes etc., whereas, in view of the Eighteenth Constitutional Amendment, Federal Legislature is not empowered to legislate for the nationwide trade unions, except for if need be, recourse to procedure laid down in Article 144(1) of the Constitution, which provides that one or more Provincial Assemblies may by resolutions empower Parliament to regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, though an Act, which may be amended by the Assembly of that Province”.
Despite these clear findings given by the Honourable Supreme Court of Pakistan, Federal Government went ahead and Industrial Relations Ordinance 2011 was promulgated on 18/07/2011. The justification for the said Ordinance was provided in the preamble which read:
“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”.
“WHEREAS the Constitution of the Islamic Republic of Pakistan recognizes the freedom of association as a fundamental right of the citizens;
AND WHEREAS the Islamic Republic of Pakistan has ratified ILO Convention 87 on Freedom of Association and Convention No. 98 on Right to Organize and Collective Bargaining;
AND WHEREAS it is expedient to consolidate and rationalize 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 matter connected therewith and ancillary thereto.”
The writer is Barrister-at-Law (Lincoln’s Inn)