This is an application moved by Habib Bank Workers Front of Pakistan through its President under Section 62 of IRO, 2012 seeking declaration of all establishments of M/s. Habib Bank Limited as one collective bargaining unit all over the country. In support of this application certain documents have been filed by the applicant union which indicate that the union was registered with this Commission as Industry wise Trade Union. It is stated that the entire establishment of M/s. Habib Bank Limited is controlled and managed by one party. Balance sheet, profit and loss of the entire establishment of M/s. Habib Bank Limited is the same which is running, its business throughout Pakistan and having its Head Office M/s. Habib Bank Limited, Head Office, I.I.Chundrigar Road, Karachi.
2. All the Registrars of Trade Unions Government of Sindh, Punjab, Balochistan and Kyber Pakhtunkhwa (Respondents No, 1 to 4) were directed to intimate this Commission if they have any local union registered with them for the respondent establishment. The Registrar of Trade Unions Khyber Pakhutnkhawa in his report has submitted his report to the effect that there are two unions registered at local level in the establishment of M/s. Habib Bank Limited in the name and style of Habib Ltd. Employees Union Khyber Pakhtunkhawa, Peshawar and Habib Ltd. Shaheen Workers Union Khyber Pakhtunkhawa Peshawar. The Registrar of Trade Unions, Government of the Punjab has submitted that there are two unions registered at local level in the establishment of Habib Bank Ltd. namely Habib Bank Inqlab Union, Punjab and Habib Bank Employees Union, Punjab. The Registrar of trade unions Government of Balochistan has replied that on provincial level a Trade union has been registered in the name and style as "Habib Bank Employees Union Balochistan" under the Balochistan Industrial Act, 2010 and same union has been certified as CBA for the territorial limits of Baluchistan and in view of 18th constitutional amendment and despite recourse to Article 144(1) of the Constitution, 1973, which is imperative for enactment of Federal legislation, how it could be possible to declare referendum between those unions registered on Federal and Provincial level and the matter in this regard is subjudice in different High Courts, hence referendum as demanded by the applicant may be postponed. The Registrar of Trade Unions, Sindh has submitted his report stating therein that at the time of registration of the union namely Habib Bank Limited Sindh Workers Front, the President and General Secretary of the said union have concealed the fact that HBL has declared as CBU by NIRC and that the Director Labour Sindh has not been notified as Registrar of the Trade Unions.
3. The Respondent No, 5 Habib Bank Employees Federation of Pakistan through its President and Respondent No, 7 Habib Bank Employees Front of Pakistan through its General Secretary have submitted their reply to the effect that the said unions have no objection if the whole establishment of M/s. Habib Bank Limited declared as one CBU.
4. The Respondents No, 6, 8, 10 to 14 despite service did not turn up to resist the application, hence were proceeded against ex-parte. Respondent No, 9 was represented by Asmat Kamal Advocate by filing memo. of appearance but thereafter despite repeated notices none turned up on its behalf. The Respondent No, 15 M/s. Habib Bank Limited has filed its consenting reply stating that it has got, no objection if the whole establishment of M/s. Habib Bank Limited is declared as one CBU.
5. Arguments heard. Record perused.
6. Perusal of the record shows that Habib Bank Limited has its more than 1400 branches in all the four provinces as well as Islamabad Capital Territory and thus is a trans provincial establishment in terms of Section 2(xxxii) of IRA, 2012. Therefore registration of unions at provincial level is unlawful and contrary to the spirit of IRA which has overriding effects in terms of Section 87 thereof. Thus in view of distribution of the workers, existing boundary of components of such workers, facility of communication, general convenience, sameness and common terms and conditions of employment and similarity of economic activity and other factors, throughout there has been one CBU in the establishment of HBL even when there was no law or concept of 'trans-provincial' establishment. After legislation of IRA, it is imperative that mushroom growth of unions at provincial/levels is curtailed in order to avoid non-uniformity, of terms and conditions of employment. Further there is one consolidated Income statement and Balance sheet of Habib Bank which is public document and available on its website. The services of the workers are transferable to other provinces as well. Both under the law as well as the consistent decisions taken by the High Court of Sindh and Lahore, there cannot possibly be more than one CBA in an establishment or group of establishment. Prior to Eighteenth Amendment in the Constitution of Pakistan by virtue of Concurrent List and more particularly Item Nos, 26 & 27 both Federal Government and the Provincial Governments could legislate on the matter of Labour. The Constitution (Eighteenth Amendment) Act, 2010 was passed by Majlise-Shoora on 20.04.2010 whereby Concurrent List was abolished. Thereafter IRA, 2012 has been promulgated. The said Act not only applies to Islamabad Capital Territory but also to Trans Provincial Establishments, meaning thereby those establishments whose memberships are in more than one province. Still further in terms of Section 87 of IRA, 2012, it has overriding effect notwithstanding anything contrary contained in any other law for the time being in force. Thus in the presence of conflict between Federal and Provincial laws, the former shall prevail. Reliance is placed on 1999 SCM R 1477 at 1484.
Hon'ble the Supreme Court of Pakistan in Civil Appeal No, 1150/2012, Civil Appeal No, 127/2013 and Civil Petition Nos, 174 & 175/2012 have held that NIRC has been established by IRA, 2012 and in relation to matters pertaining to these institutions, jurisdiction was that of NIRC. Respondent No, 3 RTU Balochistan in the first instance has failed to consider and take into account that Industrial Relations Law has a well defined demarcation in relation to those establishments which are located within one province exclusively and establishments which are of Trans Provincial nature extending to more than one province. Establishments within one province are within the ambit of Provincial RTU but the establishments having branches or office in more than one province, being Trans Provincial are outside the ambit of Provincial RTU and fall within the ambit of NIRC earlier established under IRO, 1969, thereafter continued by IRO, 2002 and thereafter under IRO, 2011 and presently IRA, 2012. The Respondent No, 3 has also failed to consider and take into account that already unions are registered with NIRC at Islamabad on the ground that the. Company is Trans Provincial Establishment having its office in all the provinces and Islamabad Capital Territory. NIRC has also issued a certificate of CBA to one of the union after Secret Ballot. The certificate of CBA is presently in force. There cannot be more than one CBA in the establishment or group of establishments, one issued by NIRC on all Pakistan basis and the second certificate of CBA, if any, issued by the Provincial RTU giving the status of provincially registered trade union as CBA is illegal and without lawful authority. The RTU Respondent No, 3 even failed to consider that with the, registration of Industry wise Trade Union and certification of the said Union as CBA by the NIRC, provincially registered trade unions, for all intents and purpose have ceased to exist on the principle laid down by the Division Bench of the Hon'ble High Court of Sindh in the case of Jang Publications vs. RTU Sindh and others reported in PLD 1984 Kar 292 since approved by the Hon'ble Supreme Court of Pakistan in Civil Appeal No, 202-K/1999 decided on 8.12.1999 and subsequently followed by another Bench of the High Court of Sindh in the case of UBL Vs RTU Sindh and others reported in 2006 PLC 465. In actual fact as a result of these decisions of Supreme Court of Pakistan and High Court of Sindh binding on the RTU, the said RTU Respondent No, 3 should have in fact declared that Respondent No, 3 union provincially registered trade union having ceased to exist.
7. Hence all the provincially registered trade unions functioning in any provinces are hereby directed to amend their constitution, include membership in more than one province and elevate their status as Industry wise trade union within a period of ninety days, failing which they shall be cancelled.
8. For what has been stated above the entire establishment of M/s. Habib Bank Limited is determined as one collective bargaining unit under Section 62 of IRA, 2012 for a period of five years and shall E continue for such period until a fresh CBU is determined by the Commission. A copy of this order be sent to the Registrar of Trade Unions of all provinces for their information and necessary action on their part. File to records.