Populist labour laws - II

Recently the President of Pakistan expressed his grievances against the activities of the trade union in PIA. The old saying: "better late then never" applies in full force. This government should have realised immediately after it came in office. There was labour unrest created by one of the leading office bearers of a political party in power based in Karachi who is also an ex-employee.
This employee created labour unrest in the MCB Bank in Karachi and disrupted the smooth working of the bank, now a privatised institution to settle his past scores for their reprimanding and prevention of office-bearers and other trade unionists from creating labour unrest. In fact, the leading office-bearer of the party, in power encouraged labour unrest in the city. This was a clear violation of Section 27(b) of the Banking Companies Ordinance 1962. The same state of affairs was witnessed immediately thereafter when following privatisation of the Pakistan Telecommunication Company Limited (PTCL), when they introduced the Uniform Pay Scales, the Federal Government interfered in order to achieve political mileage.
Pressure was exerted on the management of the PTCL who had to yield to this pressure and had to withdraw the Unified Pay Scales and even give increase in the salaries of the employees. Interference by the government in labour matters in the private sector should be the minimum. The same state of affairs continued in relation to the illegal strikes and labour agitations resorted to by the employees of the Karachi Electric Supply Company (KESC). Camps were erected in front of the company's head office and they were visited by the party workers in power. Other political leaders followed the suit. They did not realise that the KESC was now a privatised institution and interference on the part of the government should be the minimum. If the union or for that matter employees had any grievances against the management of KESC, they should have challenged the action of the company in the court of law.
After all presently this country has a free and independent judiciary whose judgements are accepted by the people, if not the government. This state of affair continued, but the management of KESC stood its ground, and only sought relief from the Courts. In the ultimate analyses the workers suffered. These workers who otherwise would have received huge amount by way of additional financial benefits as a result of Golden Shake Hand offered by the company, stand to loose only because of the government unwarranted interference. One fiasco after another has been created by the government immediately after taking office on the labour front.
The present government repealed Industrial Relations Ordinance 2002 by claiming that it was a black law introduced by the military dictator in the darkness of night. In turn the Industrial Relations Act 2008 was promulgated. The poor illiterate workers were not told that this law was only for a limited period and by virtue of Section 87(3) it was to expire on 30-06-2010. Repeated attempts to inform Ministry of Labour either to extend the said law for an indefinite period by removing Section 87(3) of IRA 2008 prior to the introduction of 18th Amendment in the Constitution was not responded. During this period 18th Amendment in the Constitution was passed whereby Concurrent List was deleted and labour was no more a Federal Subject. As on 30-04-2010, the IRA 2008 ceased to exist as a legal instrument. There was no other law thereafter in the field. Notwithstanding labour no more being a Federal Subject with the abolition of Concurrent List under the Constitution of 18th Amendment Act 2010, the prime minister on 1st May, 2010 announced the new Labour Policy although labour is now a provincial subject to be handled exclusively by each of the four provinces. For months together there was total chaos and confusion in the country. Labour Court, Labour Appellate Tribunal, National Industrial Relations Commission and other Judicial Institutions became non functional. No trade union either in the province or in the centre could be registered. No CBA could be determined. There was total breakdown of legal sanctity as to the law in operation. It goes to the credit of the Apex Court headed by Chief Justice Iftikhar Muhammad Chaudhry, who in his decision in the case of Air League reported in PLJ 2011 SC 771 wherein it was declared that IRA 2008 has ceased to exist and now each of the four provinces were to promulgate their own laws. The province of Punjab, Khyber Pakhtunkhwa and Balochistan promulgated their own Industrial Relations Act. Unfortunately Sindh failed to do so. It instead introduced Industrial Relations (Revival & Amendment) Act 2010 and gave it retrospective effect from 1st May, 2010. Perusal of this act, which has revived the IRA 2008 from 1st May, 2010 will show that Sindh has even promulgated the law which extend beyond the jurisdiction of the Sindh province. Vires of this law has since been challenged in the High Court of Sindh where the matter at present is sub judice.
It needs not be over-emphasised that just like the Ministry of Finance, dealing with the subject of labour requires the same being handled not by politicians but by technocrats well conversant with labour law. Over the last few years, the Finance Ministry invariably is headed by financial wizards and experts well conversant in the field. Unfortunately labour is being headed by politicians who have their own axe to grind. It is unfortunate that notwithstanding repeated suggestions given to the government aimed at adopting an impartial attitude having national rather than party politics approach, no efforts whatsoever has been made by the Government to handle or curb labour unrest. This has resulted in the creation of a feeling of uncertainty and despondency in the industry. The frustration and grievance of the President expressed recently be seen in this context. The labour problem is their creation.
The labour judiciary at present in the province of Sindh, especially the Appellate Forum is manned by a retired judge of the High Court of Sindh who is 75 years of age and with respect, not in good health. The indifferent attitude on the part of the government of Sindh is all too apparent. The older I grow the more I distrust the familiar doctrine that age brings wisdom. In the first instance no Labour Appellate Tribunal was constituted for almost 10 months in Sindh. Thereafter as mentioned, a retired judge of 75 years of age has been appointed Member Sindh Labour Appellate Tribunal. There is no place for the said judge to sit, to proceed with the case, with the result that he is occupying the same chamber and sharing the same room with the Presiding Officer of the Sindh Labour Court No 5. There is no separate courtroom to conduct the case, and cases are called in the Chamber. There is no adequate staff, no stenotypes, no clerk appointed. There is no place for members of the bar to sit; no court library and no law books. Two constitution petitions were filed in the High Court and in spite of directions by the Division Bench of the High Court an assurance given by the Secretary Labour of the Province in C.P. No 483/2010 given on 7-4-2010 and C.P No D-638/2010 given on 7-5-2010, there is no improvement with the result that the Tribunal today continues to remain crippled for want of adequate staff and independent offices. In Punjab there are now two Labour Appellate Tribunals as a provision to this effect is available not only under the IRA 2010 in Punjab but also in the Industrial Relations Law in Sindh. For unknown reasons the second Sindh Labour Appellate Tribunal in Sindh has not been appointed, with the result, pressure of work on one Labour Appellate Tribunal in Sindh continues. There are presently over 2200 appeals and revisions pending in the Sindh Labour Appellate Tribunal. Each month on an average 50 to 70 cases are instituted. Disposal of cases each month include withdrawal by way of settlement, dismissal of cases for no prosecution are 30 per month. Thus pressure of work in the Sindh Labour Appellate Tribunal is mounting. This is leading to labour unrest and a feeling of discontentment and unsatisfaction on the part of workers who are out of employment and are clamouring for early disposal of their cases. Mere establishment of a Labour Appellate Tribunal in haste to gain popular mileage is not sufficient. The requisite infrastructure for working of the Tribunal is essential which unfortunately is missing, leading to labour unrest at least in Sindh. Little does the government realise that if labour in Sindh takes to the streets, it will add to untold misery for the government.
As already mentioned in the case of the Air League, the apex court had declared that after the 18th Amendment and abolition of Concurrent List now only the Federal Government can pass a law on the subject of labour, provided two or more provincial assemblies pass a resolution authorising the federal government to promulgate a law on their behalf. No such law has been passed by any of the four Province conferring power to the federal government to pass a law, yet the Industrial Relations Ordinance 2011 has been promulgated. Even this law has been challenged and its vires called in question in the High Court in Sindh, Islamabad and possibly Balochistan and Punjab. Mere framing or passing of labour laws in haste is not sufficient. What is required is to introduce calculated well-considered promulgation of labour laws which strikes a harmonious balance between labour and employers. If this is not done, in due course of time, labour will be on the streets creating unrest. This caution is being repeated. This government is already facing many crises, in every walk of life. Labour unrest should not be added to the list of crisis. The government will repent its inactivity if it does not stand up and ensure that labour laws are framed by each of the four provinces within the ambit of 18th Amendment and no interference whatsoever is effected by the Federal Government or for that matter the provincial government to obtain political mileage. Labour problems are to be handled exclusively by the employers and workers, failing which by the courts of law. If this policy is not adopted the government will repent in due course of time. Already grievances against the PIA trade union have been made. More will follow gradually in due course of time as realisation follows.
Announcement of Rs 7000 per month as minimum wages across the board has no meaning unless this law is rigidly enforced. In most of the industries less than Rs 7000 per month is paid. In certain institutions less payments are given and signatures or thumb impression on Rs 7000 are obtained. Professional Labour Leaders are indifferent and oblivious to this fact. Good labour laws are begot by bad actions.
Lack of sincerity by the Governments in power is obvious as no labour laws apply to agriculture labour. In India, agricultural labour is covered by the Indian Minimum Wages Act 1961. Not so in Pakistan, agricultural labour contributes 30% of the Gross National Product of the country, yet Labour Laws do not apply to Agricultural Labour. Employment measures for persons with disabilities are woefully missing. No labour laws exist for the unorganised sector workers. Silence on the part of labour leaders is beyond imagination. Apparently they have sacrificed their conscience at the altar of greed, loot and plunder. When these professional self-seekers, trying to foul the poor illiterate workers point a finger at the employers, they should remember that four of their own fingers are pointing at their own selves. The Labour Policy 2010, read by our Chief Executive with much fanfare on 1st May, 2010 also ignores all these sectors. If there is sincerity of purpose let an "Umbrella Legislation" covering these sectors be introduced before the Senate elections or the general elections. This will show the sincerity of the Government towards ameliorating the cause of these neglected sectors of our society.
There is a famous German proverb: "If the old dog barks, he gives counsel". Will it be heard? It is not the function of our government to keep the citizens from falling into error, it is the function of the citizen to keep the government from falling into error. Must the people of this country even for a moment, or in the least degree, resign their conscience to the legislators? We should be men first, and subjects afterwards.
(Concluded) (The writer is advocate of Supreme Court)