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Cases Nos. 4‑A (56) and 24 (77) of 1986, decided on 19th February, 1986.

‑‑‑Ss. 61(1) D & 22‑A (8) (g)‑‑Pakistan Essential Services (Maintenance) Rules, 1962, r.3(3)‑‑Unfair labour practice‑‑Right of overtime claimed by employee's union‑‑Such right, held, must ordinarily be one guaranteed/ secured by or under any e9w, award or settlement.

‑‑‑Ss. 16(1)(d) a 22‑A‑8(g)‑‑Unfair labour practice‑‑Dispute relating to overtime‑‑Employees' union claiming right of overtime based on custom‑‑Proof‑‑Requirement to establish custom, held, would be to show that same had been in practice without break over a sufficient long period and that such custom was universally acquiesced in by all concerned‑‑Further proof would be required .that same was not inconsistent with any law.

‑‑‑S. 22‑A(8)(g)‑‑Unfair labour practice‑‑Application for restraining from‑‑Breach of statutory provision, held, being not covered by unfair labour practice could be dealt with separately by National Industrial Relations Commission under appropriate law.

Khadim Hussain for Respondent.

The unfair labour practice likely to occur, for the prevention of which the Management of Messrs Pakistan Refinery Limited, Karachi moved this application under section 22‑A(8)(g) of the Industrial Relations Ordinance, 1969 is the threat of interference by the respondent union with the work of the Contractor to whom the Management has assigned the job of cleaning of tank No. 16. According to the Management, the union demanded that the cleaning work be done by the Refinery workers themselves on overtime basis and with that purpose the Union exercised pressure for compelling the Management to accept that demand which constituted an unfair labour practice under section 16(1)(d) of the said Ordinance, 1969. They, therefore, prayed for issued inter‑alia, a prohibitory order restraining the union from interfering with the cleaning job of tank No. 16 being carried out by the Contractor. An ad‑interim order was issued in this regard pending hearing of the petition.

2. The respondent union in its reply asserted that "Eversince the establishment of Pakistan Refinery, the job has been done by the workers of the Refinery under special instructions from the Supervisory. Engineers concerned. At no time an outside Contractor was engaged that "the job of cleaning oil tanks is highly specialised and employees have been specially trained for this purpose" and that the job could have been done by a very limited number of workers numbering 7 to 8 only on a "nominal overtime". The Union, however, denied that they had made any demand for getting the work done by the workers on overtime basis as alleged by the management and pleaded that no question as such of putting any pressure on the Management could arise. During the hearing of the arguments on the main petition, however, learned counsel for the Union did urge that as the cleaning job had always been done by the workers who were specially trained for the purpose, the work ought to have been entrusted to them as in the past and that, therefore, the induction of a Contractor for doing the job was in breach of the right of the workers accused from a long standing practice. It was also urged that the work was highly hazardous and could not be entrusted to "unskilled and untrained workers"

3. The main question, therefore, is whether the workers did have a right to the entrustment of the cleaning job to them such as to oust the discretion of the management to get the work done through a Contractor. A right must ordinarily be one guranteed or secured by or under any Law, Award or Settlement. No reference to any such Law, Award or Settlement was made but the right was claimed on the strength of the past practice. . For this reliance was placed on the judgment of this Commission in Coft Textile Ltd. Hyderabad v. Mazdoor Union,' 1976 P L C 80, wherein a claim to bonus on the ground of custom had been examined. The judgment had been followed by Sind Labour Appellate Tribunal in 'Globe Textile Mills Ltd. v. Sind Labour Court No. III and Globe Textile Mazdoor Union 1980 P L C 89. In order to established custom it is necessary to show that it, had been in practice without a break over a sufficiently long period and that it had been universally acquisced in by all concerned and that it was not inconsistent with any law. Unfortunately the Management has not only refuted the respondent's claim but has also asserted that it has exclusive and unfettered right to arrange its business in the manner it considers best. In this connection, reliance has been placed on Messrs EMESCO Industries Ltd. v. S. Irfan Ahmad and, another, 1983 P L C 1981 wherein, after a detailed examination of the law, the Labour Appellate Tribunal is Sind held that it was an established principle that the management must be considered free to organise and arrange its business in the manner it considers best. The Management also relied on the agreement reached between itself and the respondent union which was notified on 17‑6‑1981 under sub‑rule (3) of rule 3 of the Pakistan Essential Services (Maintenance) Rules, 1962, in which it was agreed, inter alia, that: ‑

The COMPANY retains all rights and responsibilities of Management resulting from ownership of the COMPANY and pertaining to the operation of the business. These rights and responsibilities shall include but not be limited to:

(e) To determine the means, methods, processes, materials, procedures and schedules of job performance and production;

4. The Management also denied that the work had not been given to a Contractor any time before. But even if we were to accept the respondents contention that the work had never been given to a Contractor before the instant case, the respondent cannot be held to have established the requisites of custom in the face of the law which recognises the right of the management to organise its business in the manner it considers best, and in view of an express clause to that effect in the subsisting agreement between the parties. I am, therefore, unable to accept the union's contention that the past practice even if any was sufficient to create a right as claimed in the union.

5. As regards the apprehension of hazard to the workers, attention was drawn to clauses 5 & 6 of the Contract entered into by the Management with the Contractor which requires the Contractor to ensure compliance with the provisions of the Labour Laws and all other laws applicable in this regard and the Management to undertake to provide wearing apparel and Safety equipment for use by the Contractor's labour during the cleaning of tank to ensure compliance with Safety Regulations in the Refinery for the duration of the contract. In any case, a breach, if any, of the statutory provisions relating to the safety of the workers has to be dealt with separately under the appropriate law.

6. In the circumstances, I am satisfied that the discretion of the management to get the cleaning of the Tank done through a Contractor could not be interfered with by the union. The main application is, therefore, allowed and the interim prohibitory order confirmed.

A.A.

Application allowed.

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