Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Case No. 2(15) of 1976/Pb., decided on 9th September 1976.
----- S. 22(1) read with S. 2(xi)- Establishment , and "Group of establish ments"_ Meanings---Certification as "Collective Bargaining Agent" --Organization having branches all over country with two Trade Unions could be registered by Registrar, Trade Unions, Karachi and one industry-wise Trade Union registered by N.I.R.C. acting as Registrar, Trade Unions-Question whether such industry-wise Trade Union could be certified by Commission under S. 22(1) to be a "Collective Bargaining Agent" for whole of organization---Held : Such Union can be certified as C.B.A for such branches of organization only in which it has membership.
The points for determination before the Full Bench of the Commission were:
(i) Whether a bench of the Commission acting as Registrar could under section 22(1), I.R.O. certify a registered industry-wise Trade Union in an organisation to be a C.B.A. if it was the only registered industry-wise Trade Union despite the fact that there were other local registered Trade Unions in +he branches of the organization.
(ii) If it could, whether, the said industry-wise Trade Union had to be certified as C.B.A. for tire whole of the organization or only for those branches where there were no other Unions.
Held: Reading together, all the provisions of the I.R.O. clearly shows that the term establishment means the whole organization which carries on any business or industry and not its branches at various places. This definition or interpretation of the term 'establishment' also fits in with the ordinary meaning of the group of establishments . The correct meaning of the term group of establishments can best be understood by giving specified examples in the Banking Industry, for example, there are many establish ments like the National Bank of Pakistan, Habib Bank Ltd, United Bank Ltd. and Muslim Commercial Bank Ltd. etc., and all these establishments taken together from a group of establishments belonging to the same industry. Gas extraction is an industry and Sui Nothern Gas Pipelines Ltd, Indus Gas Ltd. and Karachi Gas Ltd. are establishments for carrying the industry and all these establishments taken together form a group of establishments belonging to the same industry. Similarly, supply and distribution of petroleum is an industry which is carried on by a number of establishments like Pakistan National Oils, Pakistan Burmah Shell Ltd., Premier, Dawood Petroleum and ESSO etc. and all these establishments takers together form a group of establishments belonging to the same industry.
Section 13 clause (c) also shows that registrations are to be for an establishment or group of establishments. Similarly section 22, I.R.O. also lays down that the registered Trade Unions are to be in an establishment or group of establishments. In this view of the matter taking into considera tion any interpretation of the term "establishment" and "group of establishments no Trade Union can be registered for a branch of an establishment and it an establishment has branches extending beyond one province then all the Trade Unions in that establishments are to registered as industry-wise Trade Unions with N.I.R.C and no Trade Union could be registered for any branch at the provincial level.
A.C.B.A. is to be for an establishment or group of establishments. Furthermore, a C.B.A is to take collective bargaining for the whole of establishment, to represent all its workers and to nominate representatives for certain Boards of the establishments which duty cannot be performed by a C.B.A in a particular branch of the establishment. There, cannot, therefore, be either a registered Union or a C.B.A for a branch of an establishment. The necessary corollary of this would be that the Provincial Registrar would have no jurisdiction to register a Trade Union for an establishment or group of establishments whose branches extend beyond his jurisdiction. This seems reasonable also for otherwise a great confusion would arise and the object of the Ordinance would be defeated.
The existence of an industry-wise Trade Union clearly indicates that the establishment has branches in more provinces than one. In such a case no Trade Union can be registered for the establishment by a Provincial Registrar and provincially registered Trade Unions in such an establishment are to be taken by the N. I. R. C. as non-existent. Under these circumstances, the only industry-wise Trade Union could be certified as C. B. A. under section 22(1), I. R. O. In the instant case since Messrs Spencers & Co. (Pakistan) Ltd. has branches all over Pakistan, the locally registered Trade Unions are to be ignores'. The petitioner is thus the only industry-wise Trade Union and it is to be certified as C. B. A. under section 22 (1) of the I. R. O. for the whole of establishment I.e. to say all the branches.
Per Mamoon A. Kazi (Senior Member) [Bashir Ahmad Malik and Farhat Ali Khan, Members agreeing]-
A perusal of section 22 of I.R.O. shows that the C. B. A. can be determined only with respect to "an establishment" or "a group of establishments", it is therefore, necessary first to determine the meaning of the two expressions. Since the expression "establishment" has been defined in the I. R. O., resort may be had to that definition. According to section 2, clause (ix), "establish ment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry; and except in section 22-EE includes a Collective Bargaining Unit, if any, constituted under that section in any establishment or group of establishments." When we look into this definition, it means that where an employer for carrying on his business has different branches at different places, each one of them independently can be called an "establishment".
From section 22-A of the I.R.O., as it then was (as it has since been substitute by Ordinance IX of 1972), it has become further clear that the expression "establishment" includes even a branch of the whole organization. Coming next to the meaning of the expre3sion "a group of establishments" it has not been defined in the I. R. O. As understood in its ordinary sense, in my opinion, the expression would include any number of branches together, forming a group.
The mere fact that there also exist other registered Trade Unions in some other such establishment or a group of establishments, which is a part of a big establishment under the same employer, cannot in any way operate as a bar to the granting of a certificate under section 22(I) or bolding of secret ballot by the Registrar under section 22(2), even notwithstanding the fact that there is also C.B.A. functioning for that other establishment or group.
A.C.B.A. is only to be determined in relation to a particular establish ment or group of establishments, as the case may be. When the C. B. A. has been so determined, it obviously will function only within that establishment or group of establishments and no further. This is further clarified by subsec tion (12) of section 22, which again refers to the Collective Bargaining Agent, only "in relation to an establishment or group of establishments". I am there fore, firmly of the view that a C. B. A. can only function as such for a particular establishment or group of such establishments to which its membership extends and for which it has been so declared and no further.
Functioning of more than one Collective Bargaining Agent for the same establishment or group of such establishments, although at different levels, no doubt may sometimes entail hardship for the employer, which may not be conducive at times to smooth or harmonious working; but the duty of the Courts is to interpret the Law and not to amend it. In my view section 22 admits of no other reasonable interpretation.
I would therefore, hold that the petitioner Trade Union is entitled to a certificate under subsection (1) of section 22 of the I.R.O., and that would entitle it to function as C.B.A. only for those establishments, where it has membership.
Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal and another 1974 P L C 194; Pakistan Insurarce Corporation Employees' Federation v. Pakistan Insurance Corporation and others Case No. 2(4) of 1974 and Maxwell on Interpretation of Statutes, 12th Edn., p. 29 ref.
Per S. Rais Ahmed Jafri (Member)-
It would not be proper to hold that the applicant-Union, which is an industry-wise Union can also be declared a Collective Bargaining Agent alongwith two other Collective Bargaining Agents at Karachi and Sukkur. It would defeat the very purpose for which the Industrial Relations Ordinance was enacted.
I am of the view that the term "Establishment" as defined in section 2(ix) of the Ordinance does embrace within its scope the branches of a large establishment. For instance each Branch of a Bank can be an Establishment. At the same time a Bank as a whole can also be called an Establishment.
There are the 13 establishments of the Employer. Apart from these there are two other establishments, one at Sukkur and the other at Karachi Head office. In this way there are 15 establishments of the employer. The workers of Karachi have formed a Union in Karachi Establishment, two or three of the workers at Sukkar and the workers of the rest of the 13 branches of Lahore Quetta, Hyderabad, etc. have combined together to form one Union which is the applicant-Union. The workers at Sukkur Branch have also formed their own Union. In this way there are 3 groups of establishments, Karachi, Sukkur and the rest of Pakistan. The applicant-Union, therefore, has to show that there exists no Union in the three groups of establishments in which it claims to become Collective Bargaining Agent. But since the applicant-Union has no membership in Karachi and since there are two Unions one at Karachi Establishment and the other at Sukkur Establishment its claim for being declared and certified as a Collective Bargaining Agent for all the establishments including Karachi and Sukkur is not maintainable. The applicant-Union, however, may be entitled for declaration and certification as Collective Bargaining Agent in respect of all other establishments of the Employer excluding Karachi and Sukkur but this is not the case of the applicant. The application of the Union is, therefore, liable to be rejected.
It should be obvious that an organization can be either an establishment, or a group of establishments, for the reason that two distinct terms have been used in the law not to describe the same thing. If it were intended that the two terms should connote the same meaning, it would have been so specified, as has been done in regard to the terms 'workmen' and 'workers' in clause (xxxviii) of section 2, or the terms 'industry-wise Trade Union', 'federation of such Trade Unions' and 'federations at the national level in "Explanation" under section 22-A.
As the law permits of only one C. B. A. for a 'group of establishments', there can be one and only one C. B. A. for such group as a whole and each 'establishment' which is a component of such 'group of establishments' is then not entitled to have a C.B.A. of its own besides a C.B.A. for the whole group of establishments nor a C.B.A. for the group of establishments excluding such establishment. The dimple reason is that in this manner the very purpose of having one C.B.A. in the group of establishments would be out rightly defeated, and there would be no occasion for determination of Units in relation to collective bargaining. The duplicity of C. B. A. is in no way conceived in section 22, which specifically co-relates a C. B. A. to 'an establishment' or to a 'group of establishments', according to the nature of the undertaking, and not according to the choice of a Union.
An undertaking is either an 'establishment', or a 'group of establishments', by its own nature inherent in its composition or constitution, and this entity is respected throughout the Industrial Relations Ordinance. The I. R. O. has been designed, according to its preamble, for regulation of relations bet ween workmen and employers in an orderly form or arrangement, so that the employer is enabled to negotiate with an identified entity representing all his workmen. Precisely for this very reason, the provisions of section 22-EE have been introduced. A plain reading of section 22-EE, in conjunction with section 22, would show that (1) there can be only one Collective Bargaining Agent in an undertaking belonging to the same employer and the same industry, whether it be (a) an establishment, or (b) a group of establishments; and (2) where a single Collective Bargaining Agent be not capable of safe guarding the interests of the workmen employed (a) in an establishment, or (6) group of establishments, there can be determined more than one Collective Bargaining Units in such establishment or group of establishments.
It is held that as such the applicant-Union is not qualified for being declared C.B.A. under section 22(t) of the Industrial Relations Ordinance, for all the establishments of Messrs Spencers & Co. Pakistan Limited, in the presence of other Unions, moreso the Karachi Union, whose constitution stands protected under section 67 (2) (a).
The petitioner-Union can be certified as C. B. A. for those branches of the organization known as Messrs Spencers & Co. (Pakistan) Limited in which it has membership.
Khawaja Akhtar All for Petitioner-Union.
S. M. Yaqub fir Spencers & Co. (Pakistan) Ltd.
Khawaja Muhammad Farooq for Spencers Employees' Union. Sukkur.
S. P. Lodhi for Spencers Employees' Union, Karachi.
.- Messrs Spencers & Company (Pakistan) Limited is a business organization. It has a number of branches in various towns and cities of Pakistan where workers are employed.
The admitted facts, which were confirmed by the counsel for the parties during arguments are as follows: -
An industry wise Trade Union has been formed by the worker's of the said organization, which has been registered with the N. I. R. C. It is known as Pakistan Spencers Employees' Union. Two other Unions have also been formed in the said organization but they are local in nature. One has been formed by the workers of the organization in its Karachi Branches and the other by the workers of Sukkur and Hyderabad Branches. These two Unions have been registered with the Registrar, Trade Unions, Sind Province, Karachi.
2. The Pakistan Spencers Employees' Union has approached this Commission to be declared as C.B.A. for the whole of the organization under section 22(1) of the I. R. O. on the ground that it was the only industry wise Trade Union and had membership of more than 1/3rd of the total membership of the organization, This case was assigned to the Bench of the Commission consisting of Mr. Rais Ahmed Jafri, Member to deal with it as Registrar.
A Division Bench of this Commission acting as Registrar has held on 26-6-1975 in a similar case bearing No. 2 (4) 74 that if there was only one industry-wise Trade Union in an organization having membership of more than 1/3rd of the total membership of the organization then it could be certified as C.B.A. for whole of the organization despite the fact that there were other Local Unions in various branches and some of them were acting as C.B.As. for their branches. The learned Registrar, Mr. Rais Ahmed Jafri could not share this view. He was of the opinion that the petitioner-Union could not be certified as C.B.A. under section 22 (1) of the I.R.O. at least for Karachi, Sukkur and Hyderabad branches of the organization as other Unions were in existence there and that it could only be certified as C.B.A for the rest of the branches of the organization. He, therefore, referred this case to me for referring it to the larger bench for resolving the disputed point so that there could be no conflicting judgments on the point by various benches of the Commission acting as Registrars. I, therefore, referred the matter to Full Bench of the Commission, consisting of all the whole-time Members to act as Registrar for giving an authoritative decision in the matter.
4. Khawaja Akhtar Ali, counsel for the petitioner-Union, Mr. S. M. Yaqoob, counsel for the Management, Khawaja Muhammad Farooq, counsel for Spencers Employees' Union, Sukkur and Mr. S. P. Lodhi, representative for Spencers Employees' Union. Karachi were heard at length.
5. Now so far as I understand, three points need resolution in this respect and these are as follows: --
(i) Whether a bench of the Commission acting as Registrar could under section 22 (1), I.R.O. certify a registered industry-wise Trade Union in an organization to be a C.B.A. if it was the only registered industry-wise Trade Union despite the fact that there were other local registered trade unions in the branches of the organization.
(ii) If it could, whether the said industry-wise Trade Union had to be certified as C.B.A. for the whole of the organization or only for those branches where there were no other Unions.
(iii) If, however, the said industry-wise Trade Union could not be declared a C.B.A. under section 22 (1), I.R.O. either for whole of the organi zation or for the branches where there were other Trade Unions then how was a C.B.A. to be certified under section 22 (t), I.R.O. and by whom either for whole of the organization or for the branches where there were other unions, as the case may be.
6. It may be mentioned here that throughout I have avoided the use of terms "establishment" and "group of establishments" as the whole trouble has arisen out of the definition of the word "establishments" in section 2(ix), I. R. O. and the non-definition of the word "group of establishments" therein.
7. Before dealing with the specific questions mentioned above, I would like, first of all, to give my views about the meaning of the terms "establish ment" and "group of establishments". The definition of the term "establishment" given in section 2 (ix), I.R.O. is as follows: - "Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purposes of carrying on an industry and except under section 22-EE includes a C.B.U., if any, constituted under that section in an establishment car group of establishments". The common meaning, which is generally attached to this definition is that every branch of an organization is called an establishment and any number of branches taken together is called a "group of establishments'". This can best be illustrated by a specific example. Habib Bank Limited is an organization having hundreds of branches all over Pakistan. Each Branch, according to the common meaning, is taken as an establishment and any two or more branches taken together is taken as "group of establishments". This, however, does not stand to reason because when it is asked in this connection as to what is Habib Bank Limited it is again said that it is an establishment as it cannot be urged that it is an industry or a business because the industry or business is "Banking" and not Habib Bank Limited. When again in this connection it is asked as to how many groups of establishments are there in Habib Bank Limited then again the question is not answered because any two branches taken together is called a group and the said two branches taken together with a third is also called a group and in this way there can be infinite number of groups of establishments which is ridiculous. Similarly, example can be given of gas industry, oil industry etc. There are many Gas Companies and Oil Companies supplying gas and oil arid each Company has branches all over Pakistan.
8. If the aforesaid common meaning assigned to the word "establish ment" is taken as correct then it would lead to absurd consequences so far as Trade Unions are concerned and the very object of the Industrial Relations Ordinance so far as Trade Unions are concerned would be defeated. In that case, in every branch there would be the possibility of, at least, four Trade Unions and similarly, in every group in a Province there would be the further possibility of four Trade Unions and there could be infinite groups by joining different branches together. In the same way there could also be an infinite number of industry-wise Trade Unions and what would happen if most of the office-bearers or members of a Union are transferred from one branch to another. It would also be impossible in that case to determine a C.B.A. because some of the Trade Unions would be for some branches (called establishments) and some for the same with a few others. This was certainly neither the object of the Industrial Relations Ordinance nor the intention of the Legislature.
9. An inkling to the correct meaning of the term "establishment" has been given in the last two sentences of the definition itself when it says that it includes a C.B.U., if any, constituted under section 22-EE, I.R.O. in an establishment or group of establishments. This clearly shows that C.B.U. is to be constituted in an establishment or group of establishments, which in turn shows that no C.B.U. could be constituted in a branch of an organiza tion (establishment). Section 22-EE of the I.R.O. clearly lays dawn that C.B.U. could be constituted only in an establishment or group of establish ments of the same industry and this clearly negatives the general meaning commonly given to the term "establishment" because no C.B.U. could be formed in a branch of an organization (establishment). For example how can a C.B.U. be formed in the Abpara Branch of the National Bank of Pakistan. It can only be formed in the National Bank of Pakistan. A further inkling to the correct meaning of the term "establishment" is given in the proviso to subsection (2) of section 22, I. R. O. which runs as follows: -
"Provided that the Registrar may, in the case of a large establishment having its branches in more than one town hold the secret ballot within thirty days from the making of the application."
This also clearly shows that the branches in various towns are to be those of sin establishment and those by themselves cannot be establishments. A close perusal of the definition of term "employer" under section 2 of I.R.O also leads to the conclusion that establishment means the whole organization and not its various branches at various places. The definition of employer refers to incorporation and non-incorporation in relation to an establishment and incorporation and non-incorporation can only be of the whole organiza tion and not of its various branches. Furthermore, in relation to an establish ment run by or under the authority of the Government the employer is to be the authority appointed in that behalf or head of the Department can only be for the whole organization and not for its various branches. For example, in the Post and Telegraph Department the employer is to be the head of the department or any authority appointed in that behalf. But the authority or the head can only be for the department and not for its various branches in different towns. The Post and Telegraph Department is, therefore to be taken as an establishment and not each of its branch in different towns.
10. Section 3 (a) recently added to the 1. R. O. shows that the whole organization of P. I. A. was an establishment and that P.I.A. did not consist of establishments. It may be mentioned here that there were only industry-wise Trade Unions in the P.I.A. and rightly no Local Union.
Section 15 (i) of the I.R.O. read with Standing Order 11-A also shows that the branches of an organization could not be establishments and that the whole of the organization was to be taken as an establishment, For example, if the National Bank of Pakistan closes its branch at the Super Market, Islamabad then how can it be said that whole establishment has been closed down. If the branch is taken as an establishment then who will be the employer to ask for the closure of the whole branch (called 'establishment'). A bra6ch does not have any such authority (Employer) who can approach the Labour Court of the closure. Sections 24 and 25 of the I.R.O. read together also show that an establishment means the whole organization and not its various branches, for if branches of an organization are taken as 'Establishments' then it would lead to absurd results. Habib Bank Ltd. has hundreds of branches in Pakistan and how could there be hundreds of Work Councils in the said organization and how could then they perform their function. There can only be one Work Council in the organization of Habib Bank Ltd and Habib Bank Ltd. as a whole was, therefore, to be taken as an establishment and not its various branches. A mere perusal of section 25, I.R.O. also shows that an organization as a whole was to be taken as an establishment and not its various branches because conciliators are never appointed by the Government for the various branches of an organization.
11. Reading together, all tile provisions of the I.R.O. mentioned above clearly stows that the term 'establishment' means the whole organiza tion, which carries on any business or industry and not its branches at various places. This definition or interpretation of the term 'establishment' also fits in with the ordinary meaning of the 'group of establishments'. The correct meaning of the term 'group of establishment' can best be understood by giving specific examples. In the Banking Industry, for example, there are many es tablishment like the National Bank of Pakistan, Habib Bank Ltd, United Bank Ltd. and Muslim Commercial Bank Ltd. etc. and all these establishments taken together from a group of establishments belonging to the same industry. Gas extraction is an industry and Sui Northern Gas Pipelines Ltd., Indus Gas Ltd. and Karachi Gas Ltd. are establishments for carrying on the industry and all these establishments taken together form a group of establishment belonging to the same industry. Similarly, supply and distribution of petroleum is an industry, which is carried on by a number of establishments like Pakistan National Oils, Pakistan Burmah Shell Ltd. Premier, Dawood Petroleum and Esso etc. and all these establishments taken together form a group of establishments belonging to the same industry.
12. Now before adverting to the discussion of the issues in question one more point needs clarification and I proceed to discuss that also.
The definition of Trade Union given in section 2 (xxvi), I.R.O. read with section 3 thereof shows that any number of workers can join together without any restriction to form a Trade Union. But then sections 6, 7, 13 and 22 of the I.R.O. show that some restrictions have been placed on the registration of Trade Unions. According to section 6 (iv-a), a Trade Union should relate to an establishment or group of establishments and the name of the registered Trade Unions in the establishment or group of establishments are also to be given. This clearly shows that a Trade Union is to be registered for an establishment or group of establishments. Similarly, clauses 1(d) and 2(d) of section 7, I.R.V. also show that Trade Unions are to be registered for an establishment or group of establishments. Section 13, clause (c) also shows that registrations are to be for an establishment or group of establishments. Similarly section 22, I.R.O. also lays down that the registered Trade Unions are to be in an establishment or group of establishments. In this view of the matter taking into consideration my interpretation of the term "establish ment" and "group of establishments" no Trade Union can be registered for a branch of an establishment and if an establishment has branches extending beyond ode province then all the Trade Unions in that establishment are toy be registered as industry-wise Trade Unions with N.I.R.C. and no Trade Union could be registered for any branch at the provincial level.
13. The above view is re-inforced by provision of section 22, I.R.O. according to which a C.B.A. is to be for an establishment or group of estab lishments. Furthermore, a C.B.A. is to take collective barganing for the whole of establishment, to represent all its workers and to nominate representatives for certain Boards of the establishment which duty cannot be performed by a C.B.A. in a particular branch of the establishment. There cannot, therefore, be either a registered Trade Union or a C.B.A. for a Branch of an establishment. The necessary corollary of this would be that the Provincial Registrar would have no jurisdiction to register a Trade Union for an establishment or group of establishments whose branches extend beyond his jurisdiction. This seems reasonable also for otherwise a great confusion would arise and the object of the Ordinance would be defeated.
14. If the Provincial Registrars are held competent to register Local Unions in establishments whose branches extend beyond one Province then how would a C.B.A. be determined and by whom. The National Industrial Relations Commission would not have jurisdiction to hold referendum because it can only determine a C.B.A. among industry-wise Trade Unions and a Provincial Registrar would not have jurisdiction to hold referendum because he cannot deal with an Industry-wise Trade Union. Furthermore, how can a local Union compete in referendum within an industry-wise Trade Union. The question of the splitting of the members of an industry-wise Trade Union for referendum with a Local Union does not arise because a Union cannot be split under any provisions of the I. R. O. either by the Provincial Registrar or the N. I. R. C. Besides, local. Unions might have been registered with all the 4 Provincial Registrars and in that case which Provincial Registrar will have the jurisdiction to hold a referendum.
15. I proceed now to discuss she disputed issues in the light of my interpretation of the terms "establishment", "group of establishments" and "registration of Trade Union".
Issuse No. 1.- The existence of an industry-wise Trade Union clearly indicates that the establishment has branches to more provinces than one, In such a case no Trade Union can be registered for the establishment by a Provincial Registrar and provincially registered Trade Unions in such an establishment are to be taken by the N.I.R.C. as non-existent. Under these circumstances, the only industry-wise Trade Union could be certified as C.B.A. under section 22 (1), I.R.O. In the instant case since Messrs Spencers & Co. (Pakistan) Ltd. has branches all over Pakistan, the locally registered Trade Unions are to be ignored. The petitioner is thus the only industry-wise Trade Union and it is to be certified as C.B.A. under section 22 (1) of the I.R.O.
Issue No. 2.- This issue stands answered above and the industry-wise. Trade Union is to be certified as C. B. A. for the whole of establishment i.e. to say all the branches.
Issue No. 3.- This issue also stands answered because in an establishment having branches in more than one province there could only be industry-wise Trade Unions and the referendum under section 22 (2) of the I.R.O. for certifying a C.B.A. is to be held by N.I.R.C. and not by any Provincial Registrar.
16. The up shot of the above is that the petitioner being the only industry-wise Trade Union can be certified a C.B.A. under section 22 (1) of the I.R.O. for the whole of the establishment comprising of all the branches of Messrs Spencers & Co. (Pakistan) Limited.
. - The petitioner-Union which has been registered as an industry-wise Trade Union by this Commission, has applied for being certified as Collection Bargaining Age it under section 22 (1) of the I.R.O. on the basis of its being the only registered industry-wise Trade Union in the various branches of Organization known as Spencer & Co. (Pakistan) Ltd. The enquiries made by the Single Bench of this Commission to which the application of the petitioner-Union was referred, revealed that besides that Union, there are three other Unions though of local nature, registered with the Provincial Registrars within the branches of the same Organization at Karachi, Sukkur arid Lahore and the first two out of them are also functioning as Collective Bargaining Agents within their own local limits. The question, therefore, has arisen, whether the petitioner-Union, in spite of being the only industry-wise Trade Union in the said Organization can be certified as Collective Bargaining Agent under section 21 (1) of the I.R.O., because in that case it may also be functioning as C.B.A. even for the Branches at Karachi or Sukkur where, as said above two Unions are already functioning as such within their own local limits. Here it may be clarified that except the above referred to industry-wise Union there is no other Union registered at the national level with the Commission. Since the point involved was of considerable importance, the question has now been referred to this Bench for determination. It may be mentioned at the very outset that this directly gives rise to another question that, in case, the petitioner-Union is certified as Collective Bargaining Agent, then whether, it can be certified as such for the whole of the Organization or only for those branches thereof to which its membership extends.
2. Before approaching and bringing answers to these questions, I would first like to refer to some important provisions in the I. R. O. relating to the powers and functions of this Commission as they have considerable bearing on the issues involved. The first in subsection (1) of section 22-A, which provides that "The Federal Government shall constitute a National Industrial Relations Commission." Next; subsection (8) of section 22-A defines the functions of this Commission; and clause (d) thereof empowers the Commis sion "to register industry-wise Trade Unions federations of such Trde Unions and federations at the national level". Clause (e) further empowers it "to determine the Collective Bargaining Agents amongst industry-wise Trade Unions, federation of such Trade Unions and federations at the national level." Next comes section 22-B which refers to the constitution and functions of the various Benches of the Commission, and subsection (2) thereof provides as under: -
"(2) For the efficient performance of the functions of the Commission, the Chairman shall constitute . . . .
(a) a full Bench of the Commission which shall consist of not less than three members of the Commission; and
(b) as many other Benches of the Commission consisting of one or snore members of the Commission as he may deem fit.
Subsection (3), clause (b) thereof further provides:-
"(3) The Benches shall-
(a)
(b) in relation to industry-wise Trade Unions, federations of such Trade Unions, federations at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to Trade Unions and Federations of Trade Unions within a Province,
and, for this purpose, any reference in this Ordinance to a "Registrar", "Labour. Court", or, as the case may be, "Tribunal" shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned: -
Provided that, in the performance of those functions and in the exercise of those powers, the Benches shall, unless otherwise provided in this Ordinance, follow the procedure laid down in the regulations to be made under section 22-F.
I may refer to section 13 of the I.R.O., which relates to the 'functions and powers of the Registrar, and clause (c) thereof provides that one of the functions of the Registrar shall be "the determination of the question as to which one of the Trade Unions in an establishment or an industry is entitled to be certified as to the Collective Bargaining Agent in relation to that establishment or industry". Section 22 of the I.R.O. then provides for the procedure, which is to be followed by the Registrar for determination of the Collective Bargaining Agent. The provisions of the I.R.O. quoted above make it amply clear that registration of industry-wise Trade Unions, their federations, and federations at the national level, and determination of Collective Bargaining Agents amongst them fall within one of tile functions of the Commission. In fact the Commission exercises exclusive jurisdiction in this respect by virtue of subsection (11) of section 22-A, of the I.R.O, and jurisdiction of a Provincial Registrar in such matters is completely ousted. [See section 22-A, subsection (11)]. It is further clear that by virtue of subsection (3), clause (b) of section 22-B, the Bench of the Commission, which may be acting as a Registrar has to follow the same procedure for determination of a Collective Bargaining Agent as provided in section 22 of the 1.R.O. and for that purpose any reference in the I. R. O. to a Registrar shall be deemed to be that to an appropriate Bench of the Commission.
3. Having determined these points, I now proceed to section 22 of the I.R.O., which according to me is very material for determination of the issues before us. First, I may refer to subsections (1), (2), (3), (4), (5) aid (6) thereof which I find relevant and they are reproduced verbatim in the same sequence: -
"22. Collective Bargaining Agent.-(l) Where there is only one registered Trade Union in an establishment or a group of establishments, that Trade Union shall, if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments upon an application made in this behalf be certified by the Registrar in the prescribed manner to be Collective Bargaining Agent for such establishment or group of establishments.
(2) Where there are more registered Trade Unions than one in an establishment or a group of establishments, the Registrar shall, upon an application made in this behalf by any such Trade Union which has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments or by the employer, or the Government hold within fifteen days from the making of the application a secret ballot to determine as to which one of such Trade Unions shall be the Collective Bargaining Agent for the establishment or group of establishments :
Provided that the Registrar may, in the case of a large establishment having its branches in more than one town; hold the secret ballot within thirty days from the making of the application:
Provided further that the Registrar shall not entertain any application under this subsection in respect of an establishment or group of establishments, consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum.
(3) Upon receipt of an application under subsection (2) the Registrar shall, by notice in writing, call upon every registered Trade Union in the establishment or group of establishments to which the application relates --
(a) to indicate whether it desires to be contestant in the secret ballot to be held for determining the Collective Bargaining Agent in relation to such establishment or group of establishments ; and
(b) if it so desires, to submit to him within the time specified in the notice a list of its Members showing, in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming a member and if the Trade Union is a federation of Trade Unions, a list of its affiliated Trade Unions together with a list of members of each such Trade Union showing in respect of each such member the said particulars.
(4) Every employer shall-
(a) on being so required by the Registrar, submit a list of ail workmen employed in tae e6tablishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which tie is employed, .his ticket number and the date of his employment in the establishment ; and
(b) Provide such facilities for verification of the lists submitted by him and the Trade Unions as the Registrar may require:
Provided that in computing the period of three months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), the period during which he was employed in that factory during the preceding season shall also be taken into account.
(5) The Registrar shall, after verification of the lists submitted by Trade Unions, prepare a list of voters in which shall be included the name of every workman whose period of employment, as computed in accordance with subsection (4), is not less than three months and who is a member of any of the contesting Trade Unions and shall, at least four days prior to the date fixed for the poll, send to each if the contesting Trade Unions a certified copy of the list of voters so prepared.
(6) Every workman who is a Member of any of the contesting Trade Unions and whose name appears in the list of voters prepared under subsection (5) shall be entitled to vote at the poll to determine the Collective Bargaining Agent."
I am skipping subsections (7) and (8) as they have no relevance presently. The next important are, subsections (9), (9-a) and (10) which are reproduced as under: -
(9) For the purpose of holding secret ballot to determine the Collective Bargaining Agent, the Registrar shall--
(a) fix the date of the poll and intimate the same to each of the contesting Trade Unions snit also to every employer ;
(b) on the date fixed for the poll so placed in the polling station set up for the purpose the ballot boxes which shall be sealed in the presence of the representatives of the contesting Trade Unions as to, receive the ballot papers ;
(c) conduct the poll at tubs: polling station at which the representatives of the contesting Trade Unions shall have the right to be present ;
(d) after the conclusion of the poll and in the presence of such of the representatives of tile contesting Trade Unions as may be present, open the ballot boxes and count the votes ; and
(e) after the conclusion of the Count, certify the Trade Union which has received the highest number of votes to be the Collective Bargaining Agent :
Provided that no Trade Union shall be certified to be the Collective Bargaining Agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total Number of workmen employed in such establish ment or group of establishments:
Provided further that, if no Trade Union secures such number of voter, in the first poll, a second poll shall be held between the Trade Unions, which secure the two highest numbers of votes in the first poll and the grade Union which secures a majority of the votes cast at the second roll shall he certified in the prescribed manner to be the Collective Bargaining Agent:
Provided further that, if the number of votes secured by two or more Trade Unions securing the highest number or votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further loll.
(9-a) If no Trade Union indicates under clause (a) of subsection (3) that it desires to be a contestant in the secret ballot, the Registrar shall certify the Trade Union, which has made the application under subsection (2) to be the Collective Bargaining Agent.
(10) Where a registered Trade Union has been certified under clause (e) of subsection (9) to be flit: Collective Bargaining Agent for an establishment or group of establishment, no application for the determination of the Collective Bargaining Agent for such establish ment or group shall tie entertained within a period of two years from the date of such certification except where the registration or, such a registered Trade Union is cancelled before the expiration of that period."
Finally, I may reproduce subsection (12), which provides as follows: -
"(12) The Collective Bargaining Agent in relation to an establishment or group of establishments shall be entitled to -
(a) undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work; other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any Law, other than this Ordinance, or any award or settlement ;
(b) represent ail or any of the workman in any proceedings ;
(c) give notices of, and declare a strike in according with provisions of this Ordinance ; and
(d) nominate representatives of workmen sin the Board of Trustees of any welfare institutions or Provident Fund, and of the Workers' Participation Fund established under the Companies Profits (Workers' Participation Act, 1968 (XXI of 1968)."
The net effect of section 22 is that: (a) if there is one registered Trade Union within a particular establishment, or a group of establishments then it shall if it has as its Members not less than one-third of the total workmen employed in that establishment or group upon art application made in this behalf, be certified by the Registrar as a C.B.A. for the whole of such establishment or group, as the case may be; (b) if there are two or more such Trade Unions, the Registrar shall upon an application made by any one of them, which has as its members not less than one-third of the total workmen employed in that establishment or group, as the case may be, hold a secret ballot to determine as to which one of them shall be the Collective Bargaining Agent; and (c) in that case he shall call upon every registered Trade Union within that particular establishment or group of such establishments, as the case may be, to indicate whether it desires to contest in the secret ballot to be held by him and if it so desires to submit to him a list of its members. The Registrar shall then proceed and hold the referendum jet the manger laid down in that section.
4. A perusal of section 22 shows that the C.B.A can be determined only whir respect to "an establishment" or "a group of establishments", it is therefore, necessary first to determine the meaning of the two expressions. Since the expression "establishment" has been defined in the 1 R. O., resort may be had to that definition. According to section 2, clause (ix), "establish ment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry; and except in section 22-EE includes a Collective Bargaining Unit, if any, constituted under that section in any establishment or group of establishments." When we look into this definition, it means that where an employer for carrying on his business has different branches at different, places, each one of them independently can be called an "establishment". Reference in this respect may also be made to a Division Bench judgment of the High Court of Sind & Baluchistan in Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal and another (1) and the following passage is quoted therefrom: --
"7. From the aforesaid definition it would appear that an employer may have more than one establishment, for example, offices in a commercial area, hops in business area, or one or more industrial units in an industrial area and the expression "establishment" would include not whole of the establishment of an employer but each of there individually. That an employer may have more than one establishment for carrying on his industry is or for the purpose of his industry clearly envisaged by provisions contained in the then section 22-A of the Industrial Relations Ordinance, 1969, reproduced hereunder:
"22-A. Collective Bargaining Agent far institutions with more than one establishment.----(1) Where an employer carrying on an industry has, for the purpose of that industry, more establishments than one, any registered Trade Union which fulfils such conditions as may be prescribed in this behalf may make an application in such manner and to such authority as may be prescribed for being declared as the Collective Bargaining Agent in relation to all such establishments and, upon such an application there shall be determined in the prescribed manner a Collective Bargaining Agent for such establishments.
(2) Where a Collective Bargaining Agent has been determined under subsection (1) far the establishments referred to therein, the Collective bargaining Agent determined, if any, under subsection 22 for any one or more of such establishments shall not undertake collective bargaining in respect of matters relating to the terms and conditions of unemployment applicable to workmen employed in any of sash establishment."
It will, therefore, follow that there is no substance in the contention that a person to corm within the definition of employer, as defined in the industrial Relations Ordinance, has to be in charge, supervision of or running the whole of the establishment of the employer for he may as well be, as in the present case, in charge of a part of the establishment.
From section 22-A of the I.R.O., as it then was (as it has since been substituted by Ordinance. 1X of 1972), it has become further clear that the expression "establishment" includes even a branch of the whole organization Coming next to the, meaning of the expression "a group of establishments" it has not been defined in the I.R.O. As understood in its ordinary sense, in my opinion, the expression would include any number of branches together, forming a group.
5. The next material question is whether workers in such an establish ment, which is a branch of a big establishment or any group of such establishments can form a Trade Union, and if they can whether a Collective Bargaining Agent can be determined in relation to any one of such establish ment or group of establishments. "Trade Union" according to section 2, clause (xxvi) of the I. R. O., "means any combination of workmen or employers formed primarily for the purpose of regulating relations between workmen and employers or workmen and workmen or employers and employ ers or for imposing restrictive conditions on the conduct of any trade or business and includes a federation of two or more Trade Unions." Now, section 3 of the 1.R.O., paragraph (a) provides that "workers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join association of their own choosing without previous authorization" which means that workers working in a branch or any number of such branches of a big establishment can form a Trade Union. Coming to section 22 of the 1.R.O., to would mean that if there ii only one registered Trade Union in any such establishment which is a branch of a big establishment or any group of such establishments, then even if there is a registered Trade Union in any other such establishment or group of establishments that (the first mentioned) Trade Union can be certified as a Collective Bargaining Agent for that establishment or group of such establishments to which it relates. If there are more than two Trade Unions in such establishment or group of such establishments, that vM1 require a referendum for certifying one of them as C.B.A. The words "for such establishment or group", appearing at the end of subsection (1) of section 22, and again similar words appearing at the end of subsection (2) thereof, clearly indicate that each such establish ment or group of establishments is to be treated as a separate unit by the Registrar for the purposes of section 12. In the case that mere fact that there also exist other registered. Trade Unions in some other such establish meat or a group of establishments, which is a part of a big establishment under the same employer, cannot in any way operate as a bar to the granting of a certificate under section 22 (1) or holding of secret ballot by the Registrar under section 22 (2), even notwithstanding the fact that there is also C.B.A. functioning for that other establishment or group. This point has been made further clear by subsection (3) of section 22 which provides that "upon receipt of an application under subsection (2) the Registrar shall by notice in writing, call upon every registered Trade Union in the establishment or group of establishments to which the application relates". That means chit the Registrar has first to determine, as to, to which particular establishment or group of establishments the application under subsection (2) section 22 relates, and then he has to call upon only those registered Trade Unions which relate to that particular establishment or group of establishments to take part in the referendum. The sane principle would apply in case of application received under subsection (1) of section 22. 1n that case, in order to determine that the case falls under subsection (I) of section 22, the Registrar has only to look towards that particular establishment or group of such establishments, to which the applicant-Union relates.
6. Coming to the instant case, the membership of the petitioner-Union extends to a group of establishments situate in more than one Province, Therefore, in my opinion, certificate under subsection (1) of section 22 has to be granted to it, there being no other Union in the field registered with the Commission within that group of establishments.
7. There is also another important aspect of the case. As I have already pointed out above, this Commission by virtue of section 22-A of the I.R.O., subsection (8), clause (d), has been exclusively empowered to register industry-wise Trade Unions, their federations and federations at the national level and has been further empowered under clause (e) to determine and certify Collective Bargaining Agents amongst them. That means that if there are more than one industry-wise Trade Union, federations of such Union or federations at the national level within a group of establishments extending to more than one Province, then the Commission has power to determine Collective bargaining Agent amongst them. The Commission for that purpose cannot take into consideration any other Trade Union if it is registered at the Provincial level notwithstanding the fact that it is even functioning as C.B.A. at its own level. That means, that if there is only one industry-wise Trade Union is such group of establishments then the Commission has no other alternative but to certify it as a Collective Bargaining Agent under subsection (1) of section 22. Here I may refer to a decision given by our own Division Bench of which I was one of the Members, in Pakistan Insurance Corporation Employees' Federation v. Pakistan Insurance. Corporation and others (Case No. 2(4) of 1974). In that case also a similar question was involved and it was held therein that according to section 22 of the I.R.O. more than one Collective Bargaining Agents at local, provincial or National levels can function at the same time. I still find myself in full agreement with the same view.
8. Now I come to the next question, which is again very important. That is that once the petitioner-Union is certified as C.B.A. whether it can function as such for all the establishments of Spencers Limited or only for those establishments to which it's Membership extends. As I have already pointed out above, the words, "for such establishment or group" appearing in subsection (1) of section 22, and again similar words appearing in subsection (2) thereof clearly indicate that a C.B.A. is only to be determined in relation to a particular establishment or group of establishments as the case may be. When the C.B.A. has been so determined, it obviously will function only within that establishment or group of establishments and no further. This is further clarified by subsection (12) of section 22 which again refers to the Collective Bargaining Agent, only "in relation to an establishment or group of establishments". I am therefore, firmly of the view that a C.B.A. can only function as such for a particular establishment oil group of such establishments to which its membership extends and for which it has been so declared and no further.
9. Functioning of more than one Collective Bargaining Agent for the same establishment or group of such establishments, although at different levels, no doubt may some times entail hardship for the employer, which may not be conducive at times to smooth or harmonious working; but r the duty of the Courts is to interpret the Law and not to amend it. In my view section 22 admits of no other reasonable interpretation, Maxwell ors Interpretation of Statutes, Twelfth Edition, at page 29, says: "where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it roust fee enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of statute is not to be collected from any notions which may be entertained by the Court as to what is just and. expedient: words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the Court is to expound the law as it stands, and to "leave the remedy (if one he resolved upon) to others".
10. In the end, an argument was advanced that "establishment" in section 22 of the I.R.O. means the whole of establishment, and it does not include a branch of such establishment. In that context, it was further argued that "a group of establishments" would only mean a group of any such establishments, and not that of branches of a big establishment. Reference in this respect was made to the first proviso to subsection (2) of section 22 wherein the expression "establishment" has been used in a broader sense meaning thereby the whole of the establishment. I do not agree with this view because, firstly, the definition of "establishment" in section two clause (ix) cannot be overlooked. In order to arrive at tire correct interpretation of the word "establishment" we have to read the Enactment as a whole. Moreover, reference to the then section 22-A of the I.R.O. has further made it clear that the said expression also includes even a branch of a big organisation. Secondly, if such a broad meaning is given to the said expression, it is bound to lead to absurd consequence. This requires further elucidation. The entire scheme in relation to registration of Trade Unions and determination of Collective Bargaining Agents, amongst there stows that there are to be Provincial Registrars, who are to function only within the local limits of a Province. Where the membership of a Trade Union extends beyond one Province, in such cases the Commission has been assigned those functions. Section 12 of the I.R.O. which refers to the (sic) appointed for each province. (See section 12 of the I.R.O.). It is obvious that each Registrar has to act within the local limits of the Province for which he has been appointed and no further. Where the matter pertains to more than one Province the functions of Registrar, as said earlier, have been assigned to the Commission. Now, take for an example a case where in a big organization consisting of many branches throughout the Country, there are more than one registered Trade Union, each relating to establishments in a different Province. If "establishment" means the whole of the organization, then if a request is received under section 22, subsection (2) from one of such Trade Unions, which otherwise fulfils the requirements provided by that section and subsection, then the question would arise as to which of the Registrars should hold the referendum because each one of them can exercise jurisdiction only within his own Province, which means that he has jurisdiction only in respect of one of such Trade Unions. Again in a case such as above, where one of the Unions is an industry-wise Trade Union, the same difficulty would arise. I am therefore, unable to accept the argument.
11. I would therefore, hold that the petitioner-Trade Union is entitled to a certificate under subsection (1) of section 22 of the I. R. O., and that would entitle it to function as C.B.A only for those establishments, where it has membership.
.
--We agree with the views expressed by the learned Senior Member.
.-This is an application under sec tion 22 (1) of the Industrial Relations Ordinance, 1969 by Spencer's Employees' Union (hereinafter called the applicant-Union for obtaining Collective Bargaining Agent certificate in respect of all the workers employed by the Spencers & Co. (Pakistan) Ltd. (hereinafter called the employer) their all the branches or the establishments. There are 3 Unions operating in the Organi zation: -
(1) A Union registered with the Registrar, Trade Unions, Sind, Karachi (hereinafter called the Karachi Union).
(2) A registered Union at Sukkur registered with Registrar, Trade Unions. Sind.
(3) The applicant-Union.
The applicant-Union is an industry-wise Union, which was registered in 1973 with the National Industrial Relations Commission (hereinafter called the Commission) while the Karachi Union was registered in 1953. The Sukkur Union was registered on 13-8-1975 and was declared Collective Bargaining Agent on 21-6-1976. The Karachi Union is also certified as a Collective Bargaining Agent. There is yet another Union at Lahore but it is reported to have gone out of its existence. Other facts are that the Karachi Union through chuck off system is realising subscription from 108 Members out of a total strength of 109 workers, The applicant-Union however, claims to have 2 or 3 workers as its members in the establishment, of the Employer at Sukkur. The employer has 15 Branches scattered all over the country.
The point for determination is whether the applicant-Union can be certified as Collective Bargaining Agent for all the workers employed in the establishments of the Employer including the establish ments are Karachi and Sukkur despite the fact that two local Unions not only have been registered but have also been declared as Collective Bargaining Agents for their workers by the Provincial Registrars of Trade Unions.
Arguments were advanced by all the parties in the case. The views of the employer, the Sukkur Union and the Karachi Union are that tire applicant-Union cannot be certified as Collective Bargaining Agent for the entire establishments of the Employer. According to them, the applicant-Union could be certified as Collective Bargaining Agent in all the establishments of the Employer excluding Karachi and Sukkur Establishments.
I also hold the same view but since one of the Members of the Commission in a certain case had expressed a contrary view, deemed it proper to refer the legal issue to the learned Chairman of the Commission who was pleased to constitute a Full Bench of the Commission for its determination.
I still stick to my view. The reasons for this are as under: -
(i) The meaning and spirit of section 22 (1) and of section 22 (2) of the Ordinance is clear and unambiguous ;
(ii) The intention of legislation, that there should be one Collective Bargaining Agent in an establishment or group of establishments, is clearly borne out from the language that has been used and no other interpretation is possible on this point.
It would be, therefore not proper to hold that applicant-Union which is an industry-wise Union can also be declared a Collective Bargaining Agent alongwith two other Collective Bargaining Agents at Karachi and Sukkur. It would defeat the very purpose for which the Industrial Relations Ordinance was enacted after repealing the Wet Pakistan Industrial Dispute Ordinance, 1968, West Pakistan Trade Unions Ordinance, 1968, the East Pakistan trade Unions Act, 1965, and the East Pakistan Labour Dispute Act. 1965. It may be mentioned that the West Pakistan Industrial Dispute Ordinance, 1968 had repealed the Industrial Disputes Ordinance, 1959 while the West Pakistan Trade Unions Ordinance, 1968 had repealed the Trade Unions Act, 1926.
Under the repealed Industrial Disputes Ordinance, 1959 and the West Pakistan Industrial Disputes Ordinances 1968 there was no embargo on the number of registered Trade Unions which could raise an industrial dispute. Even an unregistered Trade Union with 5 selected representatives could serve a strike notice. This scheme of the repealed law was completely overhauled by the industrial Relations Ordinance, 1969 and for the first time a system of Collective Bargaining Agent was introduced. In support of my view I would like to quote an extract from the labour policy of the Government of Pakistan announced by Air Martial Noor Khan, Member, Council of Administration on 5th July 1969.--
"(a) the concept of the recognition of the Union by an employer before it can bargain on behalf of the workers will be removed,
(b) where only one Union exists in an establishment, it will be regarded as the bargaining agent on behalf of all the workers in that establishments,
(c) wherever more than one Union exists in an establishment, the bargaining agent will be that Union which enjoys the widest support as determined through secret ballot among all workers or that establishment. The bargaining agent once determined will continue to be treated as the workers' sole representative for a minimum period of one year and thereafter till it is challenged."
This policy was reflected in the Industrial Relations Ordinance, 1969 which came into force on November 3, 1969.
There are many favourable decisions of different Courts on this point holding that the Law envisages only one Collective Bargaining Agent in an establishment or group of establishments, but I have yet to come across a decision in which a contrary view has been expressed.
It may also be mentioned that the applicant-Union has no membership at all in the Karachi Establishment and as such this Union has no right to be declared as a collective Bargaining agent at least for the Karachi establishment. Now if the applicant-Union is declared as Collective Bargaining Agent for all the establishments including Karachi Establishment there would be two Collective Bargaining Agents for the Karachi Workers viz:
(i) The Karachi Union, which was declared as Collective Bargaining Agent by the Provincial Registrar.
(ii) Applicant-Union by the Commissioner.
It would result in a legal absurdity; as for the same set of Workers there would be raised different demands by different Unions. Then again there would be a dispute as to which Collective Bargaining Agent would exercise the powers of nominating members of the Works' Council, shop steward and performing other functions including the functions of representing the workers before Conciliator, and Labour Courts etc. If the applicant-Union is declared a collective bargaining agent it may induct Confusion in the administration of the Law, which would undermine the Industrial Relations system in every large establishment instead of regulating it.
There could be other repurcussions. Take an example where a Union in a local referendum is defeated. This defeated Union with the help of some members employed in another Province manages to form an industry wise Trade Union. Should this Union which has lost in the local refrendum be declared a Collective Bargaining Agent simply because it has attained the status of an industry-wise Trade Union. Then again there would be no end to such industry-wise Collective Bargaining Agents. For instance, there is a Union comprising of Karachi and Lahore Workers. This Union would be certified as n Collective Bargaining Agent in spite the fact that the Karachi and Lahore Unions have already been declared as a Collective Bargaining Agents. Then another Union could be formed which would comprise of Karachi, Lahore and Peshawar Workers and on the same reasons, this Union should also be declared as a Collective Bargaining Agent, similarly, there would be another Union comprising of Employees at Karachi and Multan and yet another Union between the Multan and Peshawar and so on. All of them would be industry-wise Trade Unions and as against the local Collective Bargaining Agents every Union would also be exercising the right of Collective Bargaining Agent. This is definitely not the intention of legisla tion. I could quote similar examples in relation to Federations where its members even after having lost in secret ballots, could be declared Collective Bargaining Agent if the contention of the applicant-Union is accepted.
During the course of arguments the term 'establishment' and 'group of establishments' also came under discussion. The counsel for the applicant Union was of the view that establishment means one whole establishment and its different branches and offices etc. are not establishments within the meaning of section 2 (ix) of the Ordinance. In other worth Messrs Spencer & Company (Pakistan) Limited, as a whole, is an establishment and its different Branches or Offices located at Karachi, Sukkur and Punjab are not covered within the term "establishment." Assuming that this is the position, let us now analyse the position of the applicant-Union: -
"(1) Section 22 (1) states that where there is only one Union in an establishment or group of establishments that Union should be declared as a Collective Bargaining Agent. If Messrs Spencers & Co. (Pakistan) Ltd. are one establishment. Section 22(1) would now read as under: -
'Where there is only one Union in Messrs Spencers & Company that Union would be declared as a Collective Bargaining Agent . . . '
(2) This interpretation of the term "Establishment" does not help the applicant-Union at all because in this way there would be 3 Trade Unions in one establishment and provisions of section 22(l) would not be attracted."
It has been argued that if a Union does not pertain to the whole of establishment, it can not validly claim registration. In other words as the Karachi Union has not thrown open its membership to all the workers of the employer it is not a validly registered Union. I do not agree with this view. I would refer the following provisions of the Ordinance, which relate to the registration of a Trade Union in an Establishment: -
(i) Definition of Establishment as given is section 2 (ix).
(ii) Definition of registered Trade Union as given in section 2 (xxi).
(iii) Definition of Trade Union as given in section (xxvi).
(iv) Section 5 (Application for registration).
(v) Section 6 (Requirements for application).
(iv) Section 7 (Requirements for registration).
According to the definition of the Trade Union it is a combination of workmen and it need not he scattered throughout the establishment. In other Words even a few workers can form a Trade Union. In the previous laws there was some limitation regarding the number of workers who could form a Trade Union Under the Ordinance there is no limitation on workers for Forming a Trade, Union except as provided under section 7 (2) (b). In Karachi the workers of Spencers & Company (Pakistan) Limited in 1953 felt the need to form a Union. They combined together. This combination of workers as it was formed primarily for the purpose of regulating the wages between the workers and the employer, or for imposing restrictive conditions on the conduct of the Trade and business of Employer and as the Union complied with all the necessary legal formalities, it was registered by the Registrar of Trade Unions. There is no provision in the Ordinance, which indicates that a Union of workers cannot be formed except in the whole of the establishment. However there is only one exception in the case of a collective bargaining unit declared and certified under section 22-EE where it has been laid down that after the certification of a Collective Bargaining Unit no Trade Union shall be registered in respect of that Union except for the whole of such Union. Messrs Spencers & Co. (Pakistan) Ltd.; have not been certified bargaining unit. As best it could be called one establish ment, and in a part of this establishment a Union can be validly formed and registered. That being the case the Trade Unions registered at Karachi and Sukkur are validly registered Trade Unions and the applicant-Union is oho one of the Unions operating in that establishment. In this way there would be 3 Unions in the establishment of the Employer and the provisions of section 22 (1) would not be attracted. The application of the applicant Union would be liable to be rejected on this ground alone. But as already stated above, I do not agree with the view that the entire organisation of the employer is an establishment.
I will now refer to the provisions of section 3 of the Ordinance. It lays down that workers, without distinction whatsoever, shall have the right to establish and, subject to the rules of organization concerned, to join associa tions of their own choosing without previous authorization. It also provides that Trade Unions and employers associations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities . . . . and to formulate their programmes. A plain reading of this section would show that there is a complete freedom of association and no restriction of any kind has been placed on the workers. In my opinion therefore the workers can form a class-wise, category-wise or craft-wise Trade Unions and they may form Union in an establishment or a group of establishments. They can form general Unions as has been done by the dock-workers and seamen. In one and the same establishment white-collar Labour and blue-collar Labour can form different Unions and can also combine to form one Union. Since there is mushroom growth of Trade Unions, the Government has made certain amendments by introducing section 22-GE and section 7 (2) (b) and other provisions through which the position of non-Collective Bargaining Agent Unions has been weakened, otherwise these amendments were not needed.
I would also refer to section 67 (2) (a) which lays down that every Trade Union existing immediately before the commencement of this Ordinance which was registered under any such law shall be deemed to be registered under this Ordinance and its constitution shall continue in force until altered or rescinded.
Section 67 (2) (b) reads as under: -
"anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case my be, under the corresponding provisions of this Ordinance."
The Karachi Union known as Spencers & Company (Pakistan) Limited Employees' Union was registered in 1953 much before the I.R.O. came into existence, it was a validly registered Union and would remain a validly regis tered Union. Even its constitution confining its membership to the workers of Karachi would remain in force in accordance with provisions as contained in section 67 (2) (a) of the Ordinance and its registration would remain valid under section 67 (2) (b) of the Ordinance.
I am of the view that the term "establishment" as defined in section 2(ix) of the Ordinance does embrace within its scope the branches of a large establishment. For instance each Branch of a Bank can be an establishment. At the same time a Bank as a whole can also be called an establishment. In support of my view I would like to cite the judgment in writ petition No. 599/73 as decided on 30-1-1974 by a Division Bench consisting of their Lordship Tufail Ali A. Rahman, Chief Justice and Fakhruddin G. Eobrahim Justice of Sind & Baluchistan High Court in P L J 1974 Kar. 254 their Lordships have observed as under: -
"The Council is clearly in error in the meaning that he seeks to give to the expression "establishment" which is defined in I.R.O. as follows:
"establishment means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any manufacturing process, business, trade or service.
From its definition it would appear that an employer himself may have more than one Establishment, for example offices in a commer cial area shops in business area, or one or more industrial units in an industrial area and the expression "establishment" would include not whole of the establishment of an employer but each of them individually. Shat an employer may have more than one establish ment for carrying on industry or for the purpose of his industry is clearly envisaged by the provisions contained in the then section 22-A of the I.R.O., reproduced hereunder:
Section 22-A. Collective Bargaining Agent for institutions with more than one establishment.-(1) Where an employer carrying on an industry has, for the purpose of that industry more establishments than one, arty registered Trade Union which fulfils such conditions as may be prescribed in this behalf may make an application in such manner and to such authority as may be prescribed for being declared as the Collective Bargaining Agent in relation to all such establishments and, upon such an application, there shall be determined in the prescribed manner a Collective Bargaining Agent for such establishments.
(2) Where a Collective Bargaining Agent has been determined under sub section (1) for the establishments referred to therein, the Collective Bargaining Agent determined, if any under section 22 for any one or more of such establishments shall not undertake Collective Bargaining in respect of matters relating to the terms and conditions of employ ment applicable to workmen employed in any of such establishment."
Referring to this repealed section their Lordships have held that there could be small establishments within a larger establishment.
I may add that at the time when I.R.O. was promulgated, Pakistan had only two Provinces, East Pakistan and West Pakistan. Under the 1962 Constitution labour was a provincial subject as such both the Provinces East Pakistan and West Pakistan had their own different sets of labour laws. The West Pakistan Government had repealed the two Central Acts namely: -
(i) Trade Unions Act, 1926; and
(ii) Industrial Disputes Ordinance, 1969, and
had promulgated the "West Pakistan Industrial Dispute Ordinance, 1968" and the "West Pakistan Trade Unions Ordinance, 1968". Similarly the East Pakistan Government had also repealed the above two Central Laws. These four Provincial Labour Laws were repealed by the Industrial Relations Ordinance, 1965.
Even after the promulgation of the Industrial Relations Ordinances, 1969 the Laws continued to be administered by the two Provinces of East and West Pakistan. The two Provinces were hundreds of miles apart, but nevertheless the branches of all the banks, insurance companies etc., were scattered throughout the two Provinces. Each Province registered the Unions to the establishments of Banks etc. throng a Registrar Trade Unions. Each Province had Provincial Conciliators arid Provincial Labour Courts. Even in its Pakistan International Airlines Corporation two separate secret ballot were held one in East Pakistan and the other in West Pakistan. Separate Unions of large establishments were registered in tyro Provinces. It was practically impossible to form one Trade Union in all the branches of the Bank and to run it successfully. In fact there was no central machinery at the time when the I.R.O. was promulgated. There was no provision for establishing an Organisation like the Commission. Unions were being registered by Provincial Registrars. This being the factual position, how can it be admitted that the Law would define the term "Establishment" in such a way that small branches, sub-officer, shops and premises of a large Establishment like Bank, Railway etc., would be excluded from its purview.
A reference is also invited to the repealed section 32-A, which lays down as under,--
"Section 32-A.-Industrial Disputes involving more than one establish ments . . . . Where an industrial dispute relates to or involves an industrial organisation that has more than one establishments, then . . .
(a) Where the subject-matter of the dispute extends to more than one establishment situated in a Province while the headquarters office of the industrial organisation is another Province, the negotiations pro vided by section 26 shall be conducted at a place in that Province to be nominated by the Provincial Government and the conciliation having jurisdiction at such place under section 27 shall have jurisdiction to act further in the matter in respect of all such establishments. In any consequential proceedings under section 31, the arbitrator may be appointed, in respect of the dispute as affecting all the establishments from the panel maintained by the Provincial Government or may be any other person;
(b) Where the subject-matter of the dispute "tends to places in more than one Province, the negotiations provided by section 26 shall be conducted at the place were the headquarters office of the industrial organisation having establishments in such Provinces is situated, and the Conciliator having jurisdiction at such place under section 27 shall have jurisdiction to act further in the matter. In case no settlement is reached, the parties shall have power to appoint an arbitrator under section 31, who may be a person whose name is borne on the panel maintained by one of the Provincial Governments involved, or any other person."
A perusal of section 32-A would leave no doubt in the mind that the term "establishment" cannot be construed so as the exclude the branches from its scope.
It has been contended that the proviso added to subsection (2) of section 22 leads support to the meaning purported to be assigned to the term establishment', The proviso reads as under: -
"Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within 30 days from the making of the application."
The word "Branches" has been used in relations to a secret ballot. There are some large establishments in which the workers of their own free will have not formed Unions in its smaller establishments. For instance in Pakistan International Airlines the workers have formed only industry-wise Trade Unions. P.I.A. (sic) therefore, for the purposes of holding a secret ballot in one establishment. Here the workers have not formed their Unions in the smaller establishments. If such a secret ballot is to be held where only industry-wise Unions are taking part the appropriate word used for such a purpose would be "Branches" and not "Establishments", otherwise it would have created confusion.
I would, therefore, hold that each Branch of the employer is an establishment in which there are 3 Unions. The employer besides the Head Office at Karachi got the following other Branches: -
1. Hyderabad.
2. Quetta.
3. Bahawalpur.
4. Multan.
5. Lyallpur.
6. Sargodha.
7. Lahore.
8. Gujranwala.
9. Jhelum.
10. Rawalpindi.
11. Peshawar.
12. Mardan, and
13. Bennu.
There are the 13 establishments of the employer. Apart from these they are two other establishments one at Sukkur and the other at Karachi Head Office. In this way there are 15 establishments of the employer. The workers of Karachi have formed a Union in Karachi Establishment, 2 or 3 of the workers at Sukkur and the workers of the rest of the 13 branches of Lahore, Quetta, Hyderabad, etc. have combined together to form one Union which is the applicant-Union. The workers at Sukkur Branch have also formed their own Union. In this way there are 3 groups of establishments, Karachi, Sukkur and the rest of Pakistan. The applicant-Union, therefore, has to show that there exists no Union in the three groups of establishments in which it claims to become Collective Bargaining Agent. But since the applicant-Union has no membership in Karachi and since there are two Unions one at Karachi Establishment and the other at Sukkur Establishment its claim for being declared and certified as a Collective Bargaining Agent for all the establishments including Karachi and Sukkur is not maintainable. The applicant-Union, however, may be entitled for declaration and certification as Collective Bargaining Agent in respect of all other establishments of a employer excluding Karachi and Sukkur but this is not the case of the applicant. The application of the Union is, therefore, liable, to be rejected.
-The Pakistan Spencers Employees Union, Islamabad, has applied for declaration as C. B. A. for all the branches of Messrs Spencers & Co. Pakistan Limited. This case was heard by the Full Commission on the 17th and 18th August, 1976. The main issue converted on the distinction, if any, drawn by the law in respect to "an establishment" or "group of establishments" in the I. R. O., 1969.
2. The Industrial Relations Ordinance, according to its preamble, releates to the formation of Trade Unions, the regulation of relations between the employers and workmen, and the avoidance and settlement of differences arising between them or matters connected therewith and ancillary thereto.
3. Reading together the definition of the terms "Trade Union", in clause (xxvi) of section 2, I.R.O. and "industrial dispute" in clause (xiii) thereof, the law conceives of a combination of workmen and employers formed primilarly for the purpose of regulating the relations between workmen and employers etc. etc. so as to avoid and settle any dispute or differences between employers and workmen etc, etc. which is concerned with employment or non employment, or the terms of employment, or the conditions of work of any person, excluding, of course, rights guaranteed or secured to him by or under any law, or award or settlement.
4. The Industrial Relations Ordinance further conceives, in section 3 (a) and proviso thereunder, that workmen shall have the right to establish and to join associations of their own choosing, except that no workman shall be entitled to be a member of more than one Trade Union at a time. The Trade Union has the right to draw up its constitution and Rules, to elect its representatives in full freedom, to organise its administration and activities, and to formulate its programmes. In sections 6 and 7, however, certain restraints have been placed on this freedom. Section 6 of the I.R.O. enjoins that every application for registration of a Trade Union should be accompanied by a statement showing, among others: -
(1) the name of the Trade Union and the address of its head office;
(2) Total paid membership;
(3) the name of the establishment, or group of establishments, or the industry, as the case may be, to which the Trade Union relates, alongwith a statement of the total number of workmen employed therein; and the names and addresses of the registered Trade Unions in the establishment, group of establishments or industry, as the case may be, to which the union relates.
The very use of the term "as the case may be" in clause (3) above, envisages a co-relationship between the Union and the establishment; and so it does in clause (4) above.
5. According to section 7, a Trade Union shall not be entitled to registration unless, among others, all its members are workmen actually engaged or employed in the industry (business, trade, manufacture, calling, service, employment or occupation) with which the Trade Union is connected. On the other hand, where there are two or more registered Trade Unions: -
(i) in the establishment, or with which the
(ii) in the group of establishments, or Trade Union is
(iii) in the industry connected,
a Trade Union shall not be entitled to registration unless it has as its members not less than 1/5th of the total number of workmen employed--
(i) in such establishment, or
(ii) in such group of establishments, or as the case may be.
(iii) in such industry,
6. In section 2(ix), of the Industrial Relations Ordinance, "establishment" has been defined to mean any (a) office (b) firm (c) industrial unit (d) under taking (e) shop or (f ) premises, in which workmen are employed for the purpose of carrying on any business. trade manufacture, calling, service, employment or occupation. According to a recent amendment, a "Collective Bargaining Unit" in an 'establishment or group of establishments,' deter mined under section 22-EE has been included within the definition of the term "establishment".
It should be obvious that an organization can be either an establishment, or a group of establishments, for the reason that two distinct terms have been used in the law not to describe the same thing. If it were intended that the two terms should connote the same meaning, it would have been so specified, as has been done in regard to the terms 'workmen' and 'workers' in clause (xxxviii) of section 2, or the terms 'industry-wise Trade Union', federation of such Trade Unions' and 'federations at the national level in "Explanation" under section 12-A.
7. As it stands, an industrial unit or a unit of an office, firm, under taking, shop or premises in which workmen are employed for carrying on any business etc. is an 'establishment', in terms of section 2(ix). Then, if an office or a firm or undertaking or an industrial unit is spread over more than one establishment, such establishments are inherently by their composition a natural associate of the same "establishment" or "group of establishments"; and, by the use of the phrase "as the case may be", each office, firm, industrial unit, undertaking, shop or premises contituting 'the group' shall lose its independent entity. Similarly, the entire collectivity of establishments engaged in the same business, trade, manufacture, calling, service, employment or occupation, have been called the 'industry'. To quote an example, a branch of a bank located in one office or premises is an 'establishment', but the whole of the Bank as such is a "group of establishment", and the collectivity of the banks is the Banking industry. Section 22-EE has further clarified the position, and enunciated the concept of the term 'group of establishments' as belonging to the same employer and the same industry. This has been reflected in clause (ix) of section 2, whereby a Collective Bargaining Unit lass been specifically included in the meaning of 'establishment'. This specific provision abundantly makes it clear that a unit of an establishment is not an 'establishment' in its own right, unless it has been determined as a Collective Bargaining Unit according to section 22-EE.
8. The law thus conceives of---
(a) an establishment,
(b) a group of establishments, or
(c) an industry.
This results in the existence of a primary unit of an 'establishment', the secondary unit of 'group of establishments', and finally of an 'industry'; the latter connoting a collectivity of establishments engaged in the same business, trade, manufacture, calling, service, employment, or occupation. In consequence, the workers employed in an "establishment" or in a "group of establishments" or in an "industry", respectively, are entitled to form a union of their own choosing in any such unit, and not a part therof. The term 'as the case may be' in clause (b), 2subsectlon (2) of section 7, used at the end of the sentence, does not give any effects other than of "respective" to each of these entities.
9. Coming to the question of determination of Collective Bargaining Agent, the law recognises, in section 22, I.R.O, the existence of an estab lishment' or a 'group of establishments', but not the 'industry', as a unit entitled to the right of collective bargaining with the employer on behalf of all workmen employed in such unit, irrespective of the fact whether they are members of that union or are not members of any union at all (section 22(12) (a) and (b) read with section 39(2).
10. Further, section 25-A originally permitted a worker in the matter of individual grievances to be represented by an officer of the Trade Union of which he was the member. According to the recent amendment, this privilege has been withdrawn, so that a worker can now be represented only by the Collective Bargaining Agent, and not by his own Union. In fact, the employer is barred from entering into a settlement with any other Trade Union than the Collective Bargaining Agent, and the contravention of this provision is deemed to be an unfair labour practice under section 15. As the law permits of only one C.B.A, for a 'group of establishments', there can be one and only one C.B.A. for such group as a whole, and each 'establishment' which is a component of such 'group of establishments' it then not entitled to have a C.B.A. of its own besides a C.B.A for the whole group of establishments, nor a C.B.A. for the group of establishments excluding such establishment. The simple reason is that in this manner the very purpose of having one C.B.A. in the "group of establishments would be out rightly defeated, and there would be no occasion for determination of units in relation to collective bargaining. The duplicity of C.B.A. is in no way conceived in section 22, which specifically corelates a C.B.A. to 'an establishment' or to a 'group of establishments', according to the nature of the undertaking, and not according to the choice of a Union.
11. In introducing section 22-EE, the general and vital concept of 'group of establishments' has been specified in very definite terms differentiating between establishments belonging to the same employer and the same industry from hetrogeneous combination of establishments belonging to different employers and different industries. Freedom to workmen to design 'an establishment' or 'group of establishments' of their own choosing, and not in relation to the natural association in the inherent constitution of the undertaking, could better be expressed by the plural form of the term estab lishment' and (sic) be no reason in coining the term 'group of establishments' in that context. Thus, a combination of establishments forming a harmonious whole shall fall into a group for the purposes of the Industrial Relations Ordinance, and the term 'group' cannot be assigned its general dictionary meaning when it does not fit into the objectives of the law in the preamble.
12. The theory that the authority given to workers by the. Industrial Relations Ordinance to form unions of their own choice has also' given them, at the same time, the right to carve out of an undertaking or an organisation any number of independent 'establishments', or mass together any number of heterogeneous figures of their own choice to form a 'group', is not logical to any system of industrial relations, which aims at a sustained harmony among workers and their respective employer in matters of terms of employment and conditions of work Any interpretation of the term 'group of establishments' trust conform to the objectives of the preamble.
13. An undertaking is either an 'establishment', or a 'group of estab lishments', by its own nature inherent in its composition or constitution, and this entity is respected throughout the Industrial Relations Ordinance The I.R.O. hag been designed, according to its preamble, for regulation of relations between workmen and employers in an orderly form or arrangement, so that the employer is enabled to negotiate with an identified entity representing all his workmen. Precisely for this very reason, the provisions of section 22-EE have been introduced. A plain reading of section 22-EE, in conjunction with section 22, would show that: -
(1) there can be only ONE Collective Bargaining Agent in an undertaking belonging to the same employer and the same industry, whether it be-
(a) an establishment, or
(b) a group of establishments; and
(2) where a single Collective Bargaining Agent be not capable of safeguarding toe interests of the workmen employed:-
(a) in an establishment, or
(b) group of establishments,
there can be determined more than one Collective Bargaining Unit in such establishment or group of establishments.
14. It is significant that where the N.I.R.C. has decided upon determination of more than one Collective Bargaining Unit in an establish ment, or group of establishments, it has to specify the modifications, which, in consequence of its decision, will take effect "in regard to the registration of the Trade Unions and federations of Trade Unions affected by such decision". This provision in section 22-EE (1)(b) irresistably establishes a direct and intimate relationship between the territorial limits of the 'establishment' or the 'group of establishments' and those of the union. Because if so was not the intention of section 6, read with section 7, and reflected in section 22, then section 22-EE would not have provided for matters of "modification in registration", in its clause (b), according to the determination made in respect to Collective Bargaining Units.
Thus, in subsection (3) of section 22-EE, it has been significantly provided that --
after certification of a Collective Bargaining Unit, no Trade Union shall be registered in respect of that unit except for the whole of such unit", and that "no certification or proceedings for determination of Collective Bargaining Agent under section 22 shall take place for a part of Collective Bargaining Unit or a group of Collective Bargaining Units".
This provision has been reflected in the amendment of the definition of the term "establishment", in clause (ix) of section 2, so that an "establish ment" includes "a Collective Bargaining Unit, if any, constituted under that section (viz. S. 22-EE) in arty establishment or group of establishments". If it be presumed that a branch or a part of an establishment was meant to exercise its own independent status at the choice of the workers, the definition of "establishment" would not have been designed to include the collective bargaining unit, nor a bar placed is section 22-EE (3).
15. To sum up--
(1) an undertaking is either an 'establishment, or a 'group of establishments', by its inherent constitution.
(2) A 'group of establishments' is a combination of a number establishments belonging to the same employer and the same industry.
(3) Each 'establishment', which is a natural component of a 'group of establishments', has no independent entity or locus standi.
(4) In such 'establishment' which is a component of the group of establishments, the relationship of the union is vis-a-vis the 'group', and not the individual 'establishment', so that registration is in relation to the territorial jurisdiction of the 'group'.
(5) There can be only one C. B. A. for an 'establishment', or for a 'group of establishments' but if in 'an establishment', or 'group of establishments', a single C.B.A. be not competent to safeguard the interests of all workmen, ten more than one unit be determined having regard to cognate factors, like sameness or similarity of economic activity, in the same industry, or the same employer. If an employer is engaged in more than one industry, his undertakings in different industries cannot be combined to form a single mass for purposes of 'group of establishments' within the meaning of the Industrial Relations Ordinance.
16. In the light of the above discussions, it is to be seen whether the Applicant Union, namely Pakistan Spencers Employees' Union, Rawalpindi, is entitled to be declared or determined as Collective Bargaining Agent for all the establishments of Messrs Spencers & Co, Pakistan Ltd. The applicant Union has not claimed any membership in the Karachi establishment of the Company. It has thus no locus standi to claim that as an "industry wise" Trade Union it represents workers of all the establishments of the Company and so it be declared C.B.A. of the group of establishments of Silencers & Co. Pakistan inclusive of its Karachi establishment, under subsection (i) of section 22 of the Industrial Relations Ordinance. It shall be making a farce of the law to confer the authority of collective bargaining under subsection (1) of section 22, on such a union, which has no membership in one of the establishments. Until the provisions of section 22-EE have been invoked by any Union, the Registrar is bound to take cognizance of the existence of registered trade unions for the whole of the establishment. The Applicant Union can, however, claim for determina tion of C.B.A. under subsection (2) of section 22, if it may so desire, in the presence of other unions registered for the establishment. 17. It is held that as such the applicant-Union is not qualified for being declared C. B. A. under section 22(1) of the Industrial Relations Ordinance for all the establishments of Messrs Spencers & Co. Pakistani Limited, in the presence of other unions, more so the Karachi Union, whose constitution stands protected under section 67(2) (a) ibid.
The order of the full Court acting as Registrar in this case, therefore. Is that the petitioner-Union can be certified as C.B.A. for those branches of the organization known as Messrs Spencers & Co. (Pakistan) Limited in which it has membership.
Order accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer