2016 PLP 394 (PLC)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged the judgment dated 15th November, 2014, of the Sindh Labour Court No. VII, Sukkur, in application # 3 of 2013 filed by the respondent # 3, declaring the referendum illegal in which the appellant was determined as Collective Bargaining Agent (CBA).

2. Briefly, the facts are that on 8th July, 2013, in a referendum conducted by the respondent # 2 i.e. Registrar Trade Unions (RTU), the appellant was determined as CBA for Tubewell Division, Khairpur, and such certificate was issued to it on 22nd July, 2013.

3. On 1st August, 2013, the respondent # 3, a union of Workshop Division, Khairpur, challenged the referendum before the Labour Court which declared the referendum illegal on the ground that trade unions of other divisions were not invited to take part in it, further observing that the RTU shall be at liberty to hold fresh referendum after issuing notice to all the unions of the project.

4. There are several projects for salinity control and reclamation of land (SCARP) of irrigation department in Sindh. One of them is at Khairpur. Presently, there are five divisions, namely, (1) Tubewell Division, Khairpur, (2) Drainage Division, Khairpur, (3) Workshop Division, Khairpur, (4) Tubewell Division, Ranipur, and (5) Drainage Division, Ranipur, in the project. In each division, there are two trade unions, except Drainage Division, Ranipur, in which there is one trade union. Notice was given to the trade unions and their office bearers who appeared were heard.

5. The appellant objected to the jurisdiction of the Labour Court and maintainability of the application and contended that trade unions of other divisions, including respondent # 3, could not take part in the referendum for CBA of Tubewell Division, Khairpur.

6. The Labour Court rejected objection to its jurisdiction and the maintainability of the application on the ground that the appellant had failed to produce sufficient evidence to prove the objection.

7. On merits, the Labour Court declared the referendum illegal because all unions of all divisions of the project were not invited to take part in it. According to the Court, the whole project, and not a division of it, was the establishment.

8. As to maintainability of the application before the Labour Court, learned counsel for respondents # 3 and 4 strenuously argued that the Labour Court was custodian of trade unions and, therefore, all matters relating to the unions were within its jurisdiction. The argument is untenable.

9. Under Section 24 of the Sindh Industrial Relations Act, 2013 (SIRA), determination and certification of CBA is the exclusive function of the RTU and his acts/orders are not subject to appeal or application before the Labour Court, though his order determining CBU under Section 25 has been made appealable before the Labour Court under Section 26.

10. Section 34 of the SIRA, under which the respondent # 3 filed application before the Labour Court, pertains to redressal of individual grievances of a worker against his employer. The RTU is not the employer.

11. The remedy against orders of the RTU under Section 24 lies in filing a constitutional petition before the High Court. The application of the respondent # 3 before the Labour Court was not maintainable and, therefore, the Labour Court erred in holding otherwise for ridiculous reasons.

12. Under the Industrial Relations Ordinance, 1969, every office, shop, premises etc. constituted a separate establishment which gave rise to excessive number of unions and CBAs in an organization creating difficulties in dealing with matters of employees including divergent charters of demands by different CBAs. The problem stood solved on promulgation of the Industrial Relations Ordinance, 2002, and all subsequent reenacted laws, including SIRA, under which all branches and offices of an organization wherever situated constitute one establishment. Thus, under the present law there cannot be a union or CBA for a part of an establishment, except where a CBU has been determined under Section

25. For this, reference may be made to the case of Messrs Optimus Limited v. RTU Sindh reported in 2010 PLC 166 Karachi.

13. In the present case, the workers of all the unions are employees of the Irrigation Department of the Government of Sindh and not of the project. All the projects are branches of Irrigation Department and not separate establishments. Therefore, the Irrigation Department as a whole is the establishment and trade unions can be formed for the whole department and not for its each office or project and there can be only one CBA for the whole department, unless a CBU is determined under Section 25.

14. The determination of CBA for a division by the RTU and direction/observation of the Labour Court for determining CBA for a project and that too through unions registered for different divisions and not for the whole project have no legal sanctity. The trade unions will have to be registered for the whole Irrigation Department and there will be only one CBA for the whole department, unless a CBU is determined under Section 25.

15. According to Section 6(2)(b) of SIRA, for the registration of two or more trade unions in an establishment, each must have members not less than one fifth of the total number of workmen employed in the establishment. Thus, there cannot be more than five trade unions in an establishment. In the present case, there are nine unions registered for the five divisions of the project.

16. In view of the above facts, circumstances and legal position, the impugned judgment, being not sustainable, is set aside and the appeal is allowed accordingly. HBT/29/SLT Appeal allowed.