INDUSTRIAL
DEMOCRACY
i.e.
COLLECTIVE BARGAINING AGENT
By:
RIA RIAZ HUSSAIN
M.A. (
DLL. DBL (
Advocate High Court
1. Introduction.
This term has been raised for the first time
in Industrial Relation Ordinance, 1969 in the history of Labour legislation in
The intention of legislature in raising this term seems to dilute difference of power
between the parties to an Industrial dispute, the mighty employer on one side
and poor illiterate and weak employee on the other side.
In order to bring about a balance of power
between the belligerents, the weaker party has been reinforced with a
constitutional right of Freedom of Association and Collective bargaining under
Article 17(1) of Constitution of Islamic Republic of Pakistan.
This is a fundamental right and no government
can take it away. It is also enshrined in ILO'S International Convention No. 87
ratified by
2. Trade
Unionism and Collective Bargaining Agent.
Trade Unionism is a formal and organized form and structure to
represent the workers. Where there is one registered Trade union in an
establishment group of establishment or industry, on application for this
purpose, shall be certified in the prescribed manner under Section 24(1) of IRA,
2008 as Collective Bargaining Agent by the Registrar for that establishment
group of establishment, or industry, as the case may, provided it has one third
of total number of workers in the establishment as its members.
Where there are more than one registered Trade Unions in an
establishment or group of establishment or industry, application by one of
these for this purpose is sufficient to bind the Registrar to hold a secret
ballot for the determination of Collective Bargaining Agent.
3. Procedure
for CBA.
On receiving application as mentioned in sub-sections 24(2) the
Registrar shall intimate the other Trade Unions and the employer about his
intention to hold referendum for the determination of C.B.A. and shall also fix
a date for the polls. The Registrar is bound to hold such secret ballot within
fifteen days of receipt of such application and in case there is seasonal
factory as defined in Factories Act, or it includes such large establishment
having its branches in more than one town, during the month of the year when
maximum number of workers are usually employed in the factory.
The period of fifteen days is extendable to thirty days if the
establishment has branches in more than one town and is a large one.
All the registered Trade Unions in the establishment are bound to
Contest the referendum. A Trade Union which fails to contest the polls, or if
contested secures less than 15% of Polled Votes per final list of votes is
liable to be deregistered after inquiry by the Registrar.
4. Eligibility
for Voters
In order to be eligible to vote in the referendum a worker must have
three months service in the establishment and membership of any contesting
Trade Union.
For the purpose of Commuting the three month
service of a worker, the period of his service during the preceding year is
also added up if he is a worker in a Seasonal Factory as defined in Section 4
Factories Act.
Trade Union Securing highest number of Votes in the secret ballot and
having not less than one third of votes of total number of workers in the
establishment shall be declared Collective Bargaining Agent in prescribed
manner by the Registrar.
When no Trade Union secures the required number of Votes a second poll
shall be held between the two securing highest number of votes in the first
poll. In the second poll Trade Union which secures majority of votes cast at
the second poll shall be certified in the prescribed manner as C.B.A.
When in the second poll the two contesting unions happen to secure
equal number of votes, and there is a tie, a third or more polls will be held
unless the tie is broken and trade union securing majority of the polled votes
shall be certified as C.B.A.
5. Tenure
for C.B.A.
The term of office of C.B.A. was 2 years in I.R.O., 1969 but it was
changed in to 3 years in I.R.O 2002 without demand from any corner Rather
longer period in the office may provide the office bearers more chance of
corruption which may breed contempt and hostility among the workers as no fresh
referendum can be demanded by any stakeholder before the expiry of this term of
3 years unless C.B.A. Union is deregistered in accordance of provisions of this
Ordinance. [High Court Karachi water and Sanitation Agency (WASA) Employers
Welfare Union (LDA) through its General Secretary vs. The Registrar of Trade
Unions, Lahore 2003 PLC 386].
Respondent was certified as C.B.A on 27.10.2000 for a period of 2 years
as prescribed under I.R.O 1969 Section 22(10) which expired on 26.10.2002.
Application for determination of new C.B.A. made on 28.10.2002 was
dismissed by Registrar on the ground that the period of 2 years should be
extended to 3 years by virtue of I.R.O., 2002 which came into force on
26.10.2002.
It was held that in circumstances, petitioner could not have validly
moved application for determination of C.B.A before prescribed period of three
years. The tenure of CBA has again been changed two years in sub-section (11)
Section 24 of IRA, 2008 which is appreciable.
6. Duties
and rights of Contesting Unions.
The contesting Trade Unions in the referendum are duty bound to supply
list of its members to the Registrar alongwith all required particulars of the
members like their names, parentage addresses etc. When called upon by the
Registrar to do so. It is also duty of the unions to help the Registrar in
conducting the referendum in fair, transparent smooth and peaceful manner
whenever and where ever such assistance and to what extent is required by the
Registrar.
It is right of the contesting Trade Unions to raise objection to any
irregularity by the rival unions or the employer and unlike the employer it has
locus standi during the proceedings of referendum.
A contesting union has the right of presence at the time and place of
sealing and opening the ballot boxes used in the secret ballot and also at
counting of the votes.
A contesting Trade Union reserves a right to be informed of the date of
referendum and final list of voters 4 days prior to the holding of the secret
ballot by the Registrar failing which referendum loses it validity.
7. Functions
and duties of Registrar.
On receiving an application under sub-section (2) Section 24 of I.R.A
2008, the Registrar shall call upon the stakeholders i.e. contesting unions and
the employer to submit list of their members and workers respectively thereupon
after verification and matching of the lists so provided to him, he shall
prepare a list of voters who are eligible to vote in the referendum Responsibility
for preparing list of voters is cast on Registrar. Court may interfere if an
employee is excluded from list of voters despite being worker. Registrar has to
fix a date for referendum and intimate the same to the contesting unions and
the employer four days prior to the holding of the polls.
8. Delegation
of Power by Registrar under Section 24(14) IRA
Registrar may authorize an officer in writing under sub-section (14) to
perform all or any of his functions on his behalf.
Authorization given by the Registrar to conduct referendum proceedings
does not lapse or become illegal with his transfer.
The Registrar authorized District Officer Labour to conduct the
referendum proceeding in the establishment who initialed the proceedings. Then
the Registrar was transferred and new Registrar was appointed in his place.
The transfer of the Registrar did not effect the authorization given to
the officer, who had initiated the proceedings for holding referendum in
accordance with law.
It was held that authorized person had the authority to hold the
referendum in circumstances.
9. Duties
of Employer in referendum proceedings.
(i) To supply list of workers.
(ii) The employer shall supply to the Registrar list of workers who
have served in his establishment for a period more than 3 months and a separate
list of workers who have served less than 3 months. When called upon by the
Registrar.
(iii) The employer shall provide an avenue and other facilities for the
conduct of the referendum but not in any way interfere with or influence the
proceedings against or in favour of any union nor he has any locus standi to
challenge the proceedings.
(iv) Sub-section (15) of I.R.O., 2002 puts an embargo on transfer,
removal retrenchment or termination of an office bearer of a
contesting trade unions during the pendency of referendum proceedings.
After receipt of the application under sub-section (2) transfer, removal,
retrenchment and termination of Officer bears of
Contesting unions is banned except with the permission of the Court. Section 20
(15) IRO, 2002 (repealed)
10. Functions
and rights of C.B.A Rights & Duties.
A union which is certified as Collective Bargaining Agent by the
Registrar as a result of secret Ballot undertakes some duties and secures
certain rights by virtue of its office which are denied to those unions which
fail to win this Status.
11. Welfare
of the workers.
The primary function of C.B.A. is to protect and improve welfare of the
workers through negotiating better terms and conditions of employment in
agreements and safeguard their guaranteed rights but not to deprive them of
their basic right of employment.
Where C.B.A. Union entered into an agreement with the management and
financial benefits were obtained for the office bearers. They also agreed for
removal of 42 workers on account of financial and economic crisis faced by the
establishment where evidence of such crisis was unavailable. The agreement was
held to be void in the eye of law because the agreement was not inconsonance
with the primary function of C.B.A. i.e. to protect and improve welfare of the
workers, rather it went contrary to it [H.C. (Quetta) Balochistan engineering
works LTD through notified Factory Manager vs. Muhammad Slama and other 2003
PLC 330].
12. Right
to stay in office
C.B.A. once certified through the process of secret ballot secures the
unchallengeable right of staying in the office for a period of two years and
during this period no application for the holding of fresh referendum is
entertained unless it stands deregistered by the operation of law.
13. Collective
Bargaining
Collective Bargaining Agent has exclusive right to bargain Collectively with the employer on matters related to
employment, non employment and conditions of work which physically prevail in
the establishment.
Matters related to Industrial dispute fall within its purview but those
connected with individual dispute like enforcement of those rights which
workers acquire by virtue of any award or by mutual settlement are expressly
ousted from the sphere of C.B.A. under Section 24 sub-section 13(a) other than
matters which relate to the enforcement of any right guaranteed or secured to
it by any award on settlement.
14. To
plead in Proceedings
The right of representation of workers is ensured to C.B.A. by sub-section
(12) of Section 24 it can plead as party in any proceeding to represent all in
any number of the workers of the establishment provided the proceedings are
conducted under this Ordinance.
15. Nomination
in Boards
It is C.B.A.'s prerogative to nominate workers for representation in
Boards like Boards of provident Funds Workers Participation Fund etc. set up
for monetary and financial welfare of the workers. The representatives of
workers in these Boards are mostly office bears of C.B.A and are nominated in
the Boards of their respective establishment or Industry. Section
24 sub-section (13) (d)).
16. Call
for Strike Section 24(13)(c) IRA 2008.
In order to twist the mighty muscle of the employer and force him to
sit on the table of negotiation, the workers are equipped by the legislature
with the weapon of strike. Although it is not fundamental right like freedom of
Association but a statutory right yet very effective and useful and forceful
threat to unfettered powers of an employer. But power shown proves more useful
than power used. This proves useful to the workers only when used at the right
time and place and for the right and just cause in accordance with provisions
of law.
The use of this weapon against the employer is also entrusted to the
Collective Bargaining Agent. It has the right to give notice of and declare
strike in accordance with law and obviously it has the right to call off the
strike.
--------------------