Sunday, 19 January 2014

Engro Fertilizer V. Rohail Muhammad (Unfair Labour Practice Appeal)

PLJ 2013 Tr.C. (NIRC) 133
[National Industrial Relations Commission, Karachi]
Present: Bashir Ahmed Memon, Member
ENGRO FERTILIZER LTD., EMPLOYEES UNION through its General Secretary--Petitioner
versus
ROHAIL MUHAMMAD and another--Respondents
No. 4A (205)/2012-K/24 (206)/2012-K, decided on 1.3.2013.
NIRC (P&F) Regulations, 1973--
----Regul. 32(2)(c)--Industrial Relations Act, 2012--Ss. 54(e) & (g) r/w. Ss. 32 & 57--Industrial Relations Act, 2008, S. 42(1)--Charter of demand--Employees union--Management never refused for bilateral negotiations--Not threat of retrenchment by way of unfair labour practice--Objection regarding maintainability of petition--Validity of Industrial Relations Act, 2012--Challenge to--Bilateral negotiations were pending--Validity--When on receipt of charter of demands, management had constituted its negotiations team, there was no justification to issue letter and without waiting for result of negotiations and even going to conciliator the petition was filed, which according to commission was premature and also threat to management to compel for acceptance the charter of demands--If no settlement was arrived during bilateral negotiations, matter is to be referred to conciliator and if conciliation proceedings were failed, strike notice was to be given--Petition was filed at premature stage and no cause of action had accrued to petitioner for invoking jurisdiction of NIRC--Petition was dismissed.           [P. 137 & 138] A, B & C
Rana Mahmood Ali Khan, Representative for Petitioner.
Mr. Faisal Mahmood Ghani, Advocate for Respondents.
Date of hearing: 1.3.2013.
Order
This is application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 filed by the petitioner alongwith its petition filed under Section 54(e)&(g) read with Sections 32 and 57 of the Industrial Relations Act, 2012.
2.  Brief facts leading to present petition are that Engro Fertilizers Ltd Employees Union filed the present petition claiming itself to be the CBA in the respondents' management; which is a very old and renounced fertilizer producing factory of the Province and is earning Billons of rupees every year. The respondent management is against the healthy trade union activities in their establishment. The CBA has served charter of demands upon the respondents' management (Annex.A/3) and the respondents' management after receipt of notice started bilateral negotiations and the union constituted a negotiation team (Annex.A/4) for negotiations. Although the meetings for bilateral negations were held but so many months have been passed the settlement has not been finalized on charter of demands. It has been stated that the respondents have started compelling the office-bearers of petitioner union to withdraw the charter of demands and that the respondents on one hand had refused to accept the charter of demands of the workers but on the other hand had increased the benefits of management officials. It has been further stated that the petitioner union has clearly stated that it is not going to withdraw the financial benefits of the workers like previous. On this the Respondent No. 2 being Chief Executive held a meeting on 29-11-2012 at about 3-00 p.m. and delivered speech before the workers wherein he has clearly stated that the management is not going to sign charter of demands and asked the union to withdraw the charter of demands and during the meeting Respondents No. 2 threatened for retrenchment of employees and the said threats according to petitioner comes under the unfair labour practice, it is why the petitioner has brought the petition.
3.  On admitting the petition interim prohibitory order, was granted and the respondents were restrained from removing the office-bearers of the petitioner union and workers mentioned in the list Annex.P/6 and notice was issued to the respondents.
4.  After service of notice, the respondents appeared through their counsel and filed comments with legal objections and counter affidavit denying the acts of unfairlabour practice on their part and admitted that on 29-11-2012 Chief Executive of the respondents had convened the meeting not only of the workers but also of management officials and reason for convening this meeting was to apprise the workers about the crises being faced by the management. It is stated that there was electric shutdown of 321 days and so also the shutdown of Gas supply and Engro Fertilizer Limited during the period of nine months upto 30-09-2012 has suffered loss of almost three billions of rupees and copy of financial report has been produced as Anenx.R/4 alongwith comments. It has been stated that the respondents company has always encouraged the union activities within the limits of law which is proved from the fact that since 1970 16 settlements have been signed. It has been stated that charter of demands was submitted under 42(1) of Industrial Relations Act, 2008 on 01-10-2012 and other letter was submitted on 26-11-2012 for communication under Section 42(1) of IRA, 2008 (Revival & Amendment) Act, 2010 and rest of the demands were extremely unreasonable keeping in view the present state of affairs in the decrease of production due to non-availability of gas and plant shutdown. It has been stated that the respondents' management has never refused for bilateral negotiations and the copy of minutes of bilateral negotiations has been produced as Annex.R/1 and the last meeting was held on 26-12-2012 and the next meeting was fixed on 15.01.2013. It has been stated that the respondents' management has installed a new plant which has not been operated only due to non-available of Gas and in order to obtain some products there was a shift over to Mari Gas. It has been denied that there has been threat of retrenchment by way of unfair labour practice and in the present affairs of gas supply the respondent's management is within its right to take measures in accordance with law and already exorbitant benefits have been conferred in the past to the workers and in these testing times, respondent company can ill-afford such high wages when the signatory to the petition is drawing gross monthly salary including overtime ranging between Rs.171,523/- in October, 2012 to Rs.191,254/- and evidence in this regard has been filed as Annex.R/5. It has been stated that the new plant was raised with clear understanding from Gas Authorities for supply of the gas and it has not been operated due to non-supply of gas and huge amount was obtained as loan and in order to save the company from bankruptcy the workers were informed that at present the management was not in a position to accept their demands and the workers were also supposed to consider the difficulties of the management particularly in view of financial state of affairs, profitability and capacity and Town Hall Communication was held as per previous practice and the Respondent No. 2/CEO has clearly stated the position that due to non-availablity of gas from Government the respondent company has suffered huge loss and is unable to repay loans to its lenders and CEO during the meeting had requested all the employees (management and non-management) to stand by with Engro Fertilizers in this difficult condition. It has been clearly stated that neither any unfair labour practice been committed nor do the respondents intend to commit unfair labour practice.
5.  Beside the factual position the respondents have also raised preliminary legal objections regarding maintainability of the petition stating that the petitioner was registered with local Registrar of Trade Unions and CBA certificate has also been issued by him whereas admittedly the respondent establishment is Trans-Provincial Organization in view of provisions of IRA, 2012 and admittedly; the charter of demands (Annex.A/3) has been submitted by the petitioner union under the provisions of Sindh Industrial Relations (Revival and Amendment ) Act, 2010. Validity of IRA, 2012 has been challenged and according to respondents it has been promulgated contrary to the 18th Amendment and dictum laid down by the Honourable Supreme Court in the case of Air League of PIAC Employees.
6.  I have heard the arguments of Rana Mahmood Ali Khan, Labour Representative appearing on behalf of the petitioner and Mr. Faisal Mahmood Ghani, learned counsel on behalf of respondents and have gone through the pleadings and entire material placed on record.
7.  So far the legal objection that the petitioner union was registered with local Registrar of Trade Unions Government of Sindh and CBA certificate has also been issued by him whereas admittedly the respondent establishment is Trans-Provincial Organization in view of provisions of IRA, 2012 and admittedly the charter of demands (Annex A/3) has been submitted by the petitioner union under the provisions of Sindh Industrial Relations (Revival and Amendment) Act, 2010, the Industrial Relations Ordiannce, 1969 was repealed by Industrial Relations Ordinance, 2002 which in turn was repealed by Industrial Relations Act, 2008, which expired on 30-04-2010 in terms of Section 87(3) of Industrial Relations Act, 2008. All these laws have been discussed by the Honourable Supreme Court of Pakistan in its judgment of Air League reported in PLJ 2011 SC 771. The term "establishment" is defined in Section 2(x) of Industrial Relations Act, 2012, to mean any office, firm, factory, undertaking company, shop or enterprise which fall in more than one province are covered within the said definition. Section 1(3) of Industrial Relations Act, 2012 also provides that it shall apply to establishment or industry in the Islamabad Capital Territory or carrying on business at Trans-Provincial level. It is very clear and obvious that Industrial Relations Act, 2012 unless its vires is challenged and set aside by the Apex Court, Industrial Relations Act, 2012 will prevail over all or any of the earlier Industrial Relations Laws.
8.  Section 88 of IRA, 2012 says about repealing and savings and without prejudice of Sections 6 and 24 of the General Clauses Act, 1897.
"S. 88(a) every trade union of an establishment or industry located in the Islamabad Capital Territory, or in more than one province and existing immediately before the commencement of this Act, which was registered under the repealed Act shall be deemed to be registered under this Act and its constituted shall continue in force until altered or rescinded;"
In view of the above position of law, the objection raised by Mr.Faisal Mahmood Ghani, learned counsel appearing on behalf of the respondents is hereby overruled.
9.  Admittedly the charter of demands was served by the petitioner union on 01-10-2012 and on receipt of the same the respondents started bilateral negotiations and the negotiations talks are pending. The present petition was filed on 18-12-2012 and again on 26.11.2012 communication under Section 42(1) of the IRA, 2008 was served but I am unable to understand when on receipt of charter of demands on 01-10-2012 the respondents' management has constituted its negotiations team, there was no justification to issue letter dated 26.11.2012 (Annex.A/3) and without waiting for the result of the negotiations and even going to the Conciliator the present petition has been filed, which according to me is premature and also a threat to the respondents' management to compel them for acceptance the charter of demands.
10.  The petitioner union and employees are serving with respondents' management which has always been helpful and cordial with its employees. Presently when the management is under crises, it was moral duty of the petitioner/all employees of the respondent company to cooperate with the management. Legally if no settlement is arrived between the parties during the bilateral negotiations, the matter is to be referred to the conciliator and thereafter if the conciliation proceedings are failed, strike notice is to be given. Only the reason for filing the present petition has been shown of holding of a Town Hall Communication by Respondent No. 2/CEO. Admittedly the Respondent No. 2 has not only addressed to the workers but he has also addressed to the management officials and have presented true pictures and problems being faced by the management and in this context the Respondent No. 2 has requested the employees to cooperate with the management. Holding of such meeting is not an illegal act and it cannot be termed as an act of unfair labour practice for filing the present petition.
In view of above facts and circumstances I am of the considered opinion that the present petition has been filed at premature stage and no cause of action has accrued to the petitioner for invoking the jurisdiction of this Bench of Commission. Accordingly not only the application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 is dismissed but the main petition merits no consideration and the same also is dismissed.
(R.A.)  Petition dismissed

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