Industrial Relations Beyond The Law

Industrial Relations Beyond The Law is a distinctive concept to understand the changing workplace dynamics. 

Professionals who are interested to practice and excel in fields of Human Resources, Employee Relations or Industrial Relation, they must have in depth realization of peaceful and harmonious relationship at workplaces.  

 

Pakistan Gazetted Holidays 2020

Pakistan Gazetted Holidays 2020

The Ministry of Interior has released a list of public holidays to fall in 2020. Muslim festivals are subject to sighting of the moon. 

Leaves Under Labour Laws

Entitled Leaves 

A workman is entitled of following types of leaves:

Casual Leave

Under Khyber Pakhtunkhwa Factories Act 2013, Sindh Factories Act 2015 and Factories Act 1934 as adopted by Punjab through Factories (amendment) Act 2012, every worker is entitled to ten casual leave with full pay in a year.

Under Khyber Pakhtunkhwa Shops and Establishments Act 2015, Sindh Shops and Commercial Establishments Act 2015 and Punjab Shops and Establishments Ordinance 1969, every employee is entitled to ten casual leaves in a year with full pay however generally more than three casual leaves are not granted at a time. These leaves shall not be accumulated.

Ordinarily prior sanction is required to avail casual leave otherwise it is desired that employee shall intimate his employer about his absence as soon as practically possible. 

Sick Leave

Under Khyber Pakhtunkhwa Factories Act 2013 and Factories Act 1934 as adopted by Punjab through Factories (amendment) Act 2012, every worker is entitled to sixteen sick leaves in a year on half average pay.

Under Sindh Factories Act 2015, sixteen sick leaves in a year are allowed with full pay.

 Though it’s not mandatory but employer can ask a worker to submit medical certificate stating the cause of inability to perform duty. Medical Certificate shall be obtained from factory doctor if worker living in colony attached to factory and medical facility is provided by employer. 

Under Khyber Pakhtunkhwa Shops and Establishments Act 2015, Sindh Shops and Commercial Establishments Act 2015 and Punjab Shops and Establishments Ordinance 1969, every employee is entitled to eight sick leaves in a year with full pay. These leaves can be carried forward if not availed by any employee however accumulation shall not exceed sixteen days at any one time.

Annual Leaves

Under Khyber Pakhtunkhwa Factories Act 2013 and Factories Act 1934 as adopted by Punjab through Factories (amendment) Act 2012 and Sindh Factories Act 2015, every worker who has completed a period of twelve months continuous service in a factory is entitled to holidays of fourteen consecutive days during the subsequent period of twelve months.

If these leaves are not availed by worker then can be carried forward but up to fourteen days only. Annual leaves can be encashed only in case of separation from employment

 Under Khyber Pakhtunkhwa Shops and Establishments Act 2015, Sindh Shops and Commercial Establishments Act 2015 and Punjab Shops and Establishments Ordinance 1969, every employee is entitled to fourteen days annual leave upon completion of twelve months continuous employment.

These annual leaves can be accumulated up to thirty days and not availed leaves can be encashed on request of an employee.

Festival Holidays

Festival holidays having religious and national significance are generally announced by government through gazette notification in the beginning of a year and some holidays are announced during the year.

Worker are allowed to avail festival holidays however if a workman required to perform duty on festival holiday he will be allowed compensatory leave and substitute leave.

Workers are given an option to receive payment in lieu of compensatory leaves.

Weekly Holiday

Every person employed in any establishment is allowed one day holiday in each week. Employer shall intimate prescribed authority in this respect.

 Maternity Leaves

Woman worker who has completed four months service is entitled for twelve weeks maternity benefits. Employer shall permit the woman to absent herself from the duty until six weeks after the day of delivery.

Maternity benefit ordinance 1958 is equally applicable to woman either employed in management or non-management cadre.

Maternity benefits are also permissible under Social Security Ordinance 1965 to a secured woman.

Iddat

Leaves for the period of Iddat are allowed to a secured woman under Social Security Ordinance 1965.

Substitute leave

If a worker is required to perform duty on off day then he will be allowed a holiday on one of the three days immediately before or after that off day. 

Compensatory Leave

Workers are entitled to compensatory leave against working on holiday. The employer is liable to allow compensatory holidays as soon as circumstances permit.

 In province of Sindh Standing Order 9 of the Sindh Terms of Employment (Standing Orders) Act 2015 also regulates the annual holidays, festival holidays, casual leave and sick leave as provided in Factories Act 1934, and maternity leaves as defined in Maternity Benefits Ordinance 1958 and other holidays in accordance with the law, contract, custom and usage in establishments where ten or more workers are employed.

In other provinces standing order 8 of the Industrial & Commercial Employment (Standing Orders) Ordinance 1968 also regulates the annual holidays, festival holidays, casual leave and sick leave as provided in Factories Act 1934 and other holidays in accordance with the law, contract, custom and usage in establishments where twenty or more workers are employed

Leaves in Seasonal Factories

Under Baluchistan factories rules 1978 and Khyber Pakhtunkhwa factories rules 1975, workers in seasonal factories are allowed 50% of all types of leaves as provided for other factories in factories act.

Working Hours and Holidays

Working Hours and Holidays in Industrial & Commercial Establishments 

In industrial and commercial establishments working hours and holidays are regulated under laws. Mechanism of working hours and types holidays are discussed hereunder:

Spread over

Spread over means a period of work or time bracket given to employer to regulate working hours of an establishment in a day under law.

 Spread over under Factories Acts

Under Khyber Pakhtunkhwa Factories Act 2013 and Sindh Factories Act 2015, period of work is limited to ten and a half hours or in a seasonal factory eleven and a half hours in a day.

However, in Factories Act 1934, which was made applicable in Punjab through the Factories (Amendment) Act 2012 by legislative assembly of Punjab, period of work is limited to twelve hours or in a seasonal factory eleven and a half hours in a day.

Spread over under Shops and Establishments Acts

Under Khyber Pakhtunkhwa Shops and Establishments Act 2015, period of work is limited to twelve hours for adult and nine hours in case of adolescents and young persons.

Under Sindh Shops and Commercial Establishments Act 2015, period of work is limited to ten hours in winter and eleven hours in summer for adults and nine hours in winter and eight hours in summer adolescents.

Under Punjab Shops and Establishments Ordinance 1969, period of work is limited to twelve hours for adult and nine hours in case of young persons. There is another restriction on weekly hours in Punjab which elaborates that working hours shall not exceed sixty hours for adult and fifty-four hours in case of young persons.

So, the employer has to regulate working within given spread over which shall include normal working hours, intervals and overtime in daily routine working.

Eighteenth Amendment and Labour Laws

Impact of Eighteenth Amendment on Labour Laws

 The Islamic Republic of Pakistan is a democratic State with its federating units. The constitution of the Islamic Republic of Pakistan creates a balance between authority of the federation and autonomy of provinces. The Eighteenth Amendment of the Constitution of Pakistan was brought to ensure provincial autonomy and legislative competence of provinces was enhanced by deleting concurrent legislative list from the constitution,

The Eighteenth amendment in the constitution was unanimously passed on 19 April, 2010 which introduced changes in 102 out of 280 Articles of the Constitution of Pakistan through amendments, insertions, additions, substitutions or deletions.


Background – Laws of Industrial Relations

At the time of independence of Pakistan in 1947 there were few laws on the subject of labour i.e. the Trade Unions Act 1926 and the Industrial Disputes Act 1941 etc.

The Trade Unions Act 1926 was mainly intended for registration of trade unions, to specify their functions, privileges, power and other identical matters. The Trade Unions Act 1926 was modified by Trade Unions (Amendment) Ordinance 1960. In March 1968 West Pakistan Trade Unions Ordinance 1968 was promulgated.

As far as Industrial Disputes Act 1947 is concerned, it deals with investigation and settlement of Industrial Disputes by or through works committees, conciliation forums, Court of inquiry and tribunals etc. This Act was repealed and replaced by Industrial Disputes Act 1959. In March 1968 West Pakistan Industrial Disputes Ordinance 1968 was promulgated.

In 1969, the Industrial Relations Ordinance 1969 was enacted to amend and consolidate the laws relating reformation of trade unions and to achieve uniformity. Then Industrial Relations Ordinance 2002 came into field which repealed the previous law. The Industrial Relations Ordinance 2002 was repealed by Industrial Relations Act 2008. The Act of 2008 was a temporary legislation as its ending date was mentioned in it and this law stood repealed on 30 April 2010.

Meanwhile 18^th amendment came into field and provinces started legislating their own provincial law on subject of Industrial Relations i.e. Punjab Industrial Relations Act 2010, Sindh Industrial Relations Act 2013, Balochistan Industrial Relations Act 2010 and Khyber Pakhtunkhwa Industrial Relations Act 2010 are holding the field in respective provinces.

In addition to these provincial laws, An Industrial Relations Act 2012 is enacted by federal government in compliance of ILO convention No. 87 on Freedom of Association and convention No. 98 on right to organize and collective bargaining and to regulate matters in the Islamabad Capital Territory and trans-provincial establishments and industries.    

Abolition of Concurrent Legislative List

Concurrent legislative list of Federation and Provinces was abolished through 18^th amendment resultantly Labour legislation became provincial subject of legislation. Concurrent legislative list was containing the subjects of “welfare of labour; conditions of labour, provident funds, employer’s liability and workmens’s compensation, health insurance, invalidity pensions and old age pensions”.

Provincial Autonomy

After 18^th Amendment, provinces have started legislating on subject of Labour. Provinces have legislated almost on all major subjects of labour laws except laws of Employees Old Age Benefit, Companies Profit (worker’s Participation) and Worker’s Welfare Fund however province of Sindh has passed its own Sindh EOB Act and Worker Welfare Fund Act.

Outcome of Devolution

Employees in devolved institutes of public sector have faced issues of promotions and other privileges however provincial governments are complaining that funds are insufficient for proper absorption of employees and continuation of institutional projects.

Private sector employees who are working in transprovincial organizations are suffering from various issues mainly distant forums for registration of trade unions and redressal of grievances. They are also affected from inconsistencies in legislation by provincial assemblies.

Most common issues are fixation of minimum wages, rate of EOBI contribution and categories under Companies Profits (workers’ participation) Act for share in Company’s profit, jurisdiction of Labour Courts and NIRC on various subjects and scenarios.

Fundamental Rights under Constitution of Pakistan

Protection of Rights of Labourers under Constitution of Pakistan

Rights under Constitution of Pakistan

Constitution of Pakistan is the supreme law of the country and all laws passed are in line with the Constitution. Constitution has undergone various amendments. So far twenty-five amendments have been taken place.

Articles 8 to Article 28 of the 1973 Constitution describe the Fundamental Rights available to all citizens of Islamic Republic of Pakistan. Article 4 describes that right of individual shall be dealt in accordance with law.

Articles applicable on employment affairs are as under: -

Article 3. Elimination of exploitation:

The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work.

Article 4. Right of individuals to be dealt with in accordance with law, etc.

1)   To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan

2)   In particular :-

a)    no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

b)   no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

c)    no person shall be compelled to do that which the law does not require him to do.

Article 9. Security of person:

No person shall be deprived of life or liberty save in accordance with law.

Article 10-A. Right to fair trial:

For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.

Article 11. Slavery, forced labour, etc. prohibited:

1)   Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction into Pakistan in any form.

2)   All forms of forced labour and traffic in human beings are prohibited

3)   No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment

4)   Nothing in this Article shall be deemed to affect compulsory service:-

a)    by any person undergoing punishment for an offence against any law; or

b)   required by any law for public purpose provided that no compulsory service shall be of a cruel nature or incompatible with human dignity

Article 17. Freedom of Association: 

1)   Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality

2)   Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the soverignty or integrity of Pakistan, the Federal Government shall, within fifeen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

3)   Every political party shall account for the source of its funds in accordance with law

Article 18. Freedom of trade, business or profession,

Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business

Provided that nothing in this Article shall prevent:-

1)   the regulation of any trade or profession by a licensing system; or

2)   the regulation of trade, commerce or industry in the interest of free competition therein; or

3)   the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons. 

Article 25. Equality of citizens:

1)   All citizens are equal before law and are entitled to equal protection of law.

2)   There shall be no discrimination on the basis of sex

3)   Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

Article 37(e) Promotion of Social justice and eradication of social evils,

The State shall:

(a)  promote, with special care, the educational and economic interests of backward classes or areas;

(b)  remove illiteracy and provide free and compulsory secondary education within minimum possible period;

(c)  make technical and professional education generally available and higher education equally accessible to all on the basis of merit;

(d)  ensure inexpensive and expeditious justice;

(e)  make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment;

(f)   enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Pakistan;

(g)  prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation and display of obscene literature and advertisements;

(h)  prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes; and

(i)    decentralise the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public.

Disciplinary Proceedings; Charge Sheet, Inquiry and Punishment

Industrial & Commercial (Standing Orders) Ordinance, 1968

Standing Orders regulates the disciplinary proceedings against workman. Provincial assemblies also have enacted provincial standing orders.

Discipline

Discipline is a conduct of employees in accordance with the organization's rules or we say it is a set of acceptable behavior in organization.

Disciplinary Action

An action taken for correctness and improvement in performance is called disciplinary action. It also creates caution for others from committing misconduct.

Principles of Natural Justice

•      No man shall be condemned unheard.  

•      No man shall be a judge of his own cause.

•      Justice shall not only be done but shall manifestly seen to be done.

ACTS & OMISSIONS 

  (ii)  Following is the list of acts and omissions–

                 (a)  Disregard or disobedience of rules or orders;

                 (b)  Improper behaviour, such as drunkenness;

                 (c)  Making false or misleading statements;

                 (d) Inefficient, dilatory, careless or wasteful working;

                 (e)  Malingering.

Misconduct

The following ACTS & OMISSIONS are misconduct under Law.

a.      Willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;

b.   Theft, fraud, or dishonesty in connection with the employer’s business or property;

c.      Willful damage to or loss of employer’s goods or property;

d.     Taking or giving bribes or any illegal gratification;

e.      Habitual absence without leave or absence without leave for more than ten days;

f.       Habitual late attendance;

g.      Habitual breach of any law applicable to the establishment;

h.     Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline;

i.        Habitual negligence or neglect of work

j.        Frequent repetition of any act or omission referred to in clause (1);

k.     Striking work or inciting others to strike in contravention of the provisions of law.

l.        Go - slow

Punishments 

A workman found guilty of misconduct shall be liable to any of the following punishments:-

1.     Fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), upto three paisa in the rupee of the wages payable to him in a month;

2.     Withholding of increment or promotion for a specified period not exceeding one year;

3.     Reduction to a lower post; or

4.     Dismissal without payment of any compensation in lieu of notice.

Steps in Disciplinary Proceedings

1.     Disciplinary action starts with some undesirable Act or Omission by a worker which is called misconduct under law. Such act or omission should be barred under law and company policy.

2.     It’s obligatory for supervisor to initiate Incident report after observing misconduct.

3.     Management shall review the incident report and if feel appropriate charge Sheet shall be issued to accused. Charge sheet shall be signed by employer as defined under law. Reasonable time ranging between three to seven days in routine is given to worker for submission of reply to charge sheet.

4.     Employer can order impartial inquiry upon allegation levelled against worker if reply to charge sheet is found unsatisfactory or employer want to probe further into matter.

5.     Inquiry Notice shall be issued to worker with direction to appear before inquiry officer or board of inquiry alongwith his defence in form of witnesses and evidences whichever he wants to bring in support of his contentions.

6.     Employer can suspend accused worker for a period not exceeding four days at a time in Punjab, and one week in Sindh and Khyber Pakhtunkhwa. Maximum period of suspension shall not exceed four weeks

7.     Fair opportunity shall be given to accused during course of Inquiry Proceedings. Prosecution and accused can cross examin each other and their witnesses on their statements. Inquiry officer can also ask questions from any person appearing before him for recording statement in inquiry proceedings.

8.     After completion of inquiry proceedings the Inquiry officer or the board of Inquiry shall submit a report to employer with their findings on charges levelled against accused in charge sheet.

9.     Employer shall pass order of final verdict after evaluating the quantum of misconduct committed by accused, if allegations are proved.

Final Verdict

Employer can impose one of following punishment at a time.

1.    Fine upto 3% of wage after approval from Chief Inspector Factories, Punjab

2.  Withholding of Increment or Promotion for a period not exceeding one year

3.     Reduction to a lower post

4.     Dismissal