Saturday 26 May 2012

Current Scenario and suggestions for making labor laws better

Here is the current scenario of labor laws in Pakistan and in the end I have written some of my suggestions for your kind perusal. There are many problems regarding labor laws in Pakistan. These include:-

1. Different courts are dealing in the matters of employees.

There is a labor court formed under Industrial Relations Ordinance 2011 last year. In Islamabad the Industrial Relations Commission is acting as Labor court in this respect. In some small cities the district judge has powers to entertain cases under IRO 2011. Similarly there are separate labor courts in some cities of Pakistan.
IRO 2011 basically deals with the disputes between the employers and workmen. The following definition of workman is mentioned in the definition clause of IRO 2011..
"worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied and for the purpose of any proceedings under this ordinance in relation to an industrial dispute in includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity.
The problem with this definition is that it excludes all persons having managerial or administrative posts from the domain of labor courts. A common practice in many organizations is that they hire people by giving them managerial posts and practically such people fall under the definition of workmen... There is no suitable forum for such people.

2. Jurisdiction for filing cases is not clear among litigants.
One of the bigger problems with many litigants and lawyers is that they do not know which forum to
approach because of ambiguities in labor laws... Generally speaking one forum is labor court, another forum is Federal services tribunal, and Civil Court is another forum...
When there is no forum among these available then the aggrieved person holds the right to approach High Court under Article 199 of the constitution of Islamic Republic of Pakistan. At times it happens that the wrong forums are approached and the cases are dismissed after a long period of time on the bases of lack of jurisdiction. That leads to further complications as the matters turn time barred by law because of the delay in approaching the right forum.

3. It is hard to get relief from the courts of law.
A common practice is that the judges at lower forums do not prefer to admit cases as there are hundreds of cases which the judges have to hear on daily bases. They have burden of work already and it’s hard for them to manage cases in routine practice.
Judges at lower forums wish to dismiss cases in-liminie. Even when they admit cases they usually try to prolong them so that they get transferred and they do not receive pressure from superior courts for wrongly deciding them in favor of any party.

4. Courts are reluctant to pass decrees against employers.
The judges in the courts are reluctant to give relief to the aggrieved persons. The reason is that the employee who is aggrieved is weak while the organization on the other hand is strong.
There are big multi-national organizations having millions of dollars revenue every month. They have the ability to hire influential lawyers, they can bribe judges at superior courts easily and they can easily impose pressure on judges at lower forums.
Similarly there are strong institutions against which judges are reluctant to pass any decree. For example NUST is a very strong institution and even if it dismisses its employee unjustly it is impossible to get a decree for reinstatement of employee against that institution from any court of law.

5. System of trial is slow.
System of trial is slow especially in the civil courts. Civil courts are the slowest ones; service tribunal is little faster while Labor courts work faster than all other courts. However, appeals can be filed twice against the original decree and that makes things even worse. Usually the justice is delayed and denied at the end of aggrieved person.
The employers usually have their legal teams, panels, departments and it is easier for them to manage the litigation through them. On the other hand the aggrieved employee has to survive as well as fight his case in the court of law. For that he/she has to find a new job at times which is difficult. He/she cannot fight the case for long time as good opportunities come by anytime. For the same reasons many aggrieved employees leave their cases without getting any relief after struggling for few months.

6. We do not have good precedents in labor laws.
The most controversial judgment regarding the labor laws was passed by chief justice Iftikhar Choudhary himself. You can read the complete judgment at this link at my forum… http://salmankhangolra.blogspot.com/2012/05/controversial-judgment-of-iftikhar.html
Here is some of the controversial content from the judgment which is in direct conflict with various articles of constitution of Pakistan.

“In the absence of statutory rules, principle of "master & servant" was applicable and respondents were entitled to seek remedy permissible before Court of competent jurisdiction--Employees of P.T.C.L. were governed by principle of "master and servant" and in absence of statutory rules, constitutional petitions filed by employees were not maintainable--All employees having entered into contract of service on the same and similar terms and conditions had no vested right to seek regularization of their employment, which was discretionary with the master--Master was within his rights to retain or despense with services of an employee on the basis of satisfactory or otherwise performance--Contract employees had no right to invoke constitutional jurisdiction, where therein services were terminated on completion of period of contract--As all respondents were covered under the definition of workman, they were entitled to one months notice or salary in lieu thereof, as permissible to them under the rule of master and servant”
There are many questions that arise from this judgment…
Q1. Why we still follow principle of master and servant?
Q2. Is the "Master and Servant Doctrine" according to the injunctions of Islam?
Q3. Is the master and servant doctrine in line with the constitution of Islamic Republic of Pakistan?
Q4. If an employee is working in a non-statutory organization, isn’t he allowed to enjoy freedom, equality and justice in comparison with the person working in statutory organization?
Q5. Is the master and servant doctrine above the contract law?
Q6. Isn’t master and servant doctrine a rule of Jungle?

In practice it is happening that even when the private employers terminate their employees forcefully they are justified. The lawyers representing the employers appear in the courts of law and they give this judgment as precedent saying that the master is at liberty to terminate the service of a servant. They take the plea that the servants can only claim damages as there are many judgments on that. So the judges dismiss cases with the plea of being barred by law and reinstatements against most of employers are impossible that way.

How labor laws can be made better?
In my opinion the following steps should be taken for making the labor laws more effective in Pakistan.
1)    There should be one court dealing with all kinds of employment cases and that should be labor court with having powers to entertain service matters, matters of statutory and non-statutory organizations and matters of top management employees as well.
2)    There is no point in making separate courts for civil servants, government employees, private employees and top management of organizations.
3)    There should be equality among the litigants. Putting the litigants partly under master and servant doctrine is injustice, inequality and discrimination.
4)    The courts should be empowered in a way that they do not have any fear to pass judgments against any kind of employers.
5)    There should be day to day proceedings along with the concept of evening courts so that the employees can get their rights speedily with convenience.
6)    The salaries of the dismissed employees should be attached and submitted in the courts along with all benefits till the disposal of suits so that the employer has fear of losing case as well.
7)    There should be only one right of appeal available to the parties. Heavy costs should be there on the employer in case of reinstatement of employees.
8)    In case of dismissal or forceful termination the employer should immediately issue experience letter and all relevant documents with good impression of the employer so that he/she gets a good job during the pendency of trial in a court case.
9)    The employers should not be allowed to hold any documents or belongings of employees in any circumstances.
10)    Laws should be made pro-employees rather than pro-employers. The job timings should be observed in international standards.


Best Regards,
Salman Yousaf Khan Golra
Advocate High Court Islamabad






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