' S. IJAZUL HASSAN (MEMBER - I).---This appeal under section 22-D of the Industrial Relations Ordinance, 1969 read with section 8(3) thereof, hereinafter referred to as the Ordinance, is directed against the order dated 1-5-1988 made by Registrar, Industrywise Trade Unions, NIRC, Islamabad with a prayer for directing the Registrar to register the trade union and issue a certification of registration to the appellants union.
2. The Associated Press of Pakistan Union of Journalists hereinafter referred to as the appellant union submitted an application before a Single Bench exercising powers of Registrar of Industrywise Trade Unions, hereinafter referred to as the respondent, for registration as an industrywise trade union. The respondent finding Article 5 of the Constitution of the Union, maintaining distinction between workers and workers by not allowing non-journalists of the same establishment to be the members of the union, in conflict with the provisions of section 3 of the Ordinance, refused the registration under section 8(1) of the Ordinance with the following observations: "A craft or categorywise union such as the union proposed to be registered, is essentially divisive of collective bargaining strength of the totality of workers in an establishment. It promotes disunity instead of unity and is directed towards securing or protecting the narrow interests of their own segment of founding workers. The whole scheme of the Industrial Relations Ordinance, 1969 is to prevent such fissiparous tendencies among workers as they dissipate the bargaining strength of a union..... "
" .A craft or categorywise Union would be structurally unable to conclude satisfactory settlements and infuse confidence among the class of workers, whom it does not represent and own as members "
" ..The submission that section 3 (ibid) lays down that workers can form and join associations of their own choosing, does not warrant registration of trade unions on categorywise or craft basis as it is based on incomplete reading the text of section 3(a) (ibid) which provides that workers shall form such unions without any distinction. Thus the law as it is, discourages the erosion of collective bargaining strength of workers by one or more classes among them..."
3. Learned representative for the appellant union challenged the legality of the impugned order and maintained with reference to sections 2 and 3 of the Ordinance that the learned Registrar proceeded on wrong premises and erroneously held that Article 5 of the Constitution of the Union was opposed to the law on the point and as such the appellant union was not registrable. He also pointed out that it had been the persistent practice of the Commission to accord registration to categorywise trade union, but in the present case a different view was taken contrary to the earlier view which has prejudiced the appellants' cause. He reitrated that the first portion of subsection 3(a) of the Ordinance is with regard to the general right of the worker to form their union and the second portion of this subsection is with regard to the membership of the trade union which could be restricted only by the respective rules of the trade unions. To substantiate the plea reference was made to the following. Categorywise trade union registered with the Commission:
1. (a) Pakistan Telecommunication Union (Traffic).
(b) Pakistan Telecommunication Lion Staff Union.
(c) Pakistan Telecommunication Engineering Staff Union.
2. RAILWAYS.
(a) Guards
(b) Saloon Attendants.
(c) Gangmen.
(d) Clerks.
(e) Signalmen.
(f) Stores.
3. POSTAL DEPARTMENT.
(a) Post Offices.
(b) R.M.S.
(c) Postal Life Insurance.
(d) Director General Office
4. STATE BANK OF PAKISTAN.
(a) Clerks
(b) Non-clerks.
5. PAKISTAN INTERNATIONAL AIRLINES.
(a) Flight Engineers and Navigators Association.
(b) Pakistan Airlines Pilots Association.
' Lastly, it was contended on behalf of the appellant union with reference to a case titled The East Pakistan Airlines Pilots Association v. The Registrar of Trade Unions, Government of East Pakistan, reported in 1971 PLC 42 that the term 'Collective Bargaining Unit' appearing in section 2(v-a) of the Ordinance has been defined to mean those workers or class of workers of an employer in one or more establishments falling within the same class of industry whose terms and conditions of employment are, or could appropriately be, the subject of collective bargaining together. A perusal of the above definition of the term "collective bargaining unit" makes it crystal clear that unions of separate classes of workmen can be legally formed and registered .
5. Qazi Ahmad Saeed, Deputy Registrar of the Commission, on the other hand, defended the impugned order and prayed for its sustenance maintaining that though section 3 of the Ordinance provides that the workers without distinction whatsoever have the right to establish or to join association' of their own choosing but this right given to the workers is subject to restriction imposed in section 4 of the Ordinance. He added that in the present case out of 61 journalists only 16 journalists are members of the appellant union whereas the remaining journalists are members of the rival union namely APP Employees Union, Rawalpindi/Islamabad. The rival union is certified as CBA by the Commission vide order dated 3-9-1986 under Certificate No, 10/86.
' Section 2 (xxvi) of the IRO, 1969 defines trade union as; "Trade union means any combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and employers or workmen and workmen or employers and employers or for imposing restrictive conditions on the conduct of any trade or business and includes a federation or two or more trade unions."
' The relevant portion of section 3 of the Ordinance reads:
(a) workers, without distinction whatoever 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 authorisation: Provided.........................
(b) .
(c) "trade unions and employers associations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize there administration and activities and to formulate their programmes.
(d)
Section 4. Law of the land to be respectedWorkers and employers and their respective organization in exercising the rights provided for in section 3, like other persons or organized collectivities, shall respect the law of the land.
Section 6 (iv-a) of the Ordinance reads: "the name of the establishment or group of establishments, of the industry, as the case may be, to which the trade union relates alongwith a statement of the total number of workers employed therein."
' The relevant parts of sections 2, 7, 22, 39 and 43 of the Ordinance are reproduced below for reference sake: Section 2(v-a) 'Collective Bargaining Unit" means those workers or class of workers of an employer in one or more establishments falling within the same class of industry whose terms and conditions of employment are, or could appropriately be, the subject of collective bargaining, together: Section 2(v) "Collective Bargaining Agent" in relation to an establishment or industry, means the trade union of workmen which under section 22, is the agent of workmen in the establishment or, as the case may be, industry, in the matter of collective bargaining; Section 7. "Requirements for Registration.--(1) A trade union shall not be entitled to registration under this Ordinance unless the constitution thereof provides for the following matters, namely-- (a)
(b)
(c)
(d)
(e)
(g)
(h)
(i) a)
(k)
(1)
(2) Without prejudice to the provisions of subsection (1) a trade union of workmen shall not be entitled to the registration under this Ordinance--
(a) .......................................
(b) where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is connected unless it has as its members not less than one/fifth of the total number of workmen employed in such establishment, group of establishments or industry as the case may be."
Section 22. Collective Bargaining Agent.--(1) 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 mane ) to be collective bargaining agent for such establishment or group.
(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; ' Section 39.ttlements and awards on whom binding1) A settlement arrived at in the course of a conciliation proceeding (or otherwise between the employer and the collective bargaining agent) or an award of arbitrator published under section 31, or an award or decision of a Labour Court delivered under section 37 (or the decision of a Tribunal under section 38) shall-- (a)
(b)
(c) .......................................
(d) where a collective bargaining agent is one of the parties to the dispute, be binding on all workmen who were empolyed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date.
' Section 43.Raising of Industrial disputes.-- No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent (or an employer).
6. Adverting to the first submission regarding registration of All Pakistan Telecommunication Line Staff Union and Postal Department etc. On categorywise basis, the learned Registrar observed: "As for the categorywise unions of All Pakistan Telecommunication Line Staff Union and Pakistan Telecommunication Engineering Staff Union as also the categorywise unions of the Postal Department or the State Bank of Pakistan the same have been registered in their respective collective bargaining units (CBU) which had been declared in those establishments under section 22-EE. The provisions of section 22-EE are however special provisions, which override the normal and general provisions of IRO, 1969 in regard to registration of a union under clause (b) of subsection (1) of section 22-EE. The `categorywise' unions in these CBUs have been registered as a result of formation of CBUs in those establishments which is not the case of APP Union of Journalists. This plea is therefore untenable."
7. Having considered the submissions made before us in the light of the law reproduced above, I am of the considered opinion that learned Registrar had justifiable reasons to disallow the application and refuse issuance of a certification of registration to the appellant's union, finding Article 5 of the Constitution of the Union, opposed to the spirit of section 3 of the Ordinance. The aforesaid Article maintaining distinction between worker and workers by not allowing non- journalists of the same establishment to be the members of the appellants' union, runs contrary to the mentioned provisions of law. A union, as submitted, can be registered for a part of the establishment which has been declared to be collective bargaining unit. In the present case it has not been done. Sui Northern Gas Workers Union, Lahore v. NIRC NLR 1978 Labour 174 and Kaleem Rabbani v. National Bank of Pakistan Workers Union, Lahore 1980 PLC 188.
8. The second consideration which weighed with the learned Registrar in disallowing the registration application was that "a craft or categorywise union would be structurally unable to conclude satisfactory settlement and infuse confidence among the class of workers, whom it does not represent and own as member."
9. In my opinion, the reasoning given by the learned Registrar in refusing to accord registration to the appellants' union, is supported by the law on the point and hardly calls for any interference. The practical difficulty visualized by the learned Registrar, in determining the Collective Bargaining Agent and in representing the different categories of workers within an establishment will be confronted resulting in bitter relationship among the class of workers. It is neither feasible nor desirable and certainly cannot be the intention of the legislature. Learned representative for the appellants union has not been able to convince us that the refusal on the part of the learned Registrar to accept the registration application, has prejudiced the appellants' cause.
10. In conclusion, finding no substance in this appeal. I dismiss the same and maintain the impugned order.
' BAQAR ALI KHAN (MEMBER).--- I have the privilege of going through the judgments of my brother Member and learned Chairman on the decision of the learned Senior Member refusing registration to the appellate, union. I do not agree with the view taken by learned Senior Member to the effect that Article 5 of the Constitution of the appellant confining its membership to the journalists only, is in conflict with section 3 (a) of the Industrial Relations Ordinance, 1969 which provides that workers shall have a right to organise "without distinction whatsoever". Section 3 (a) is verbatim reproduction of Article 2 of the ILO Convention No, 87 namely Freedom of Association and protection of the right to organise convention, 1948. Under this convention which has been ratified by the Government of Pakistan, the words "without distinction whatsoever" have been explained to mean as under:- " In order to leave no doubt of the real significance of this Article, it was understood that the report of the committee would stress the fact that according to the terms of paragraph 1 (Article 857 of this Code) freedom of association was to be granted not only to employers and workers in private industry, but also to public employees, and without distinction or discrimination of any kind as to occupation, sex, colour race, creed, nationality or political opinion."
(The International Labour Code, 1951, Vol. I, page 681).
' Therefore, the words "without distinction whatsoever" have been used in the law in an entirely different context and do not bar the formation and registration of a trade union formed by a category of workers of an establishment.
2. It would be evident from section 3 of the IRO that the workers have a right to draw up their own constitutions and subject only to the rules of the constitution, have an option to join an association of their own choosing. In the present case the Journalists have drawn their own constitutions and under Rule 5 thereof only a journalist can become member of the union. Section 3(a) therefore, does not bar the registration of the said union. The provisions of section 3 actually supplement the definition of the term "trade union" as given in section 2(xxvi) of the IRO wherein "any combination of workers" has been allowed. It may be on regional basis or on the basis of a particular category of workers.
3. The definition of collective bargaining unit (hereinafter called CBU) as given in section 2 (v-a) is so clear that there remains no doubt that any class of workers can form their own union. The observation of the learned Senior Member that "the case of CBA in a CBU is different" does not appear to be logical as the constituency of a CBA may be the whole of the establishment or a part thereof after having been declared as CBU, the provisions of law and requirements for registration of a trade union remain the same.
4. The learned Chairman in his judgment has been pleased to observe in detail the repercussions that will follow if a categorywise union is registered and the question of its determination as CBA arises. In order to avoid complications arising out of such a situation, the learned Chairman has advised that the appellate union may first apply for the creation of separate collective bargaining unit for journalists. My humble view is that complications pointed out, would arise only if a categorywise registered trade union applies for its. Certification as a CBA. But it is not necessary that each and every registered trade union must apply for its certification as a CBA or if it applies for the same it must be certified as such. The registration of a union and its certification as CBA are two different acts for which different conditions have been laid down under the Law. Nowhere it has been pre-conditioned that only that union should be registered which fulfils the condition for its determination of CBA. Experience has shown that only those workers form separate categorywise trade unions who are in minority and feel that their rights are not adequately safeguarded by the general workers' union having majority support of the workers. A category of workers in majority may not feel necessity of forming their separate union. If that be so, the apprehension of the learned Senior Member that "if categorywise trade union having majority is declared as CBA, it will not infuse confidence among the (other) class of workers", appears to be unfounded. Even if, for the sake of argument, a categorywise trade union having majority is declared as CBA, it will be empowered to raise an industrial dispute "connected with employment or non-employment or the terms of employment or the conditions of work of any person..." and where a CBA is one of the parties to the dispute, under section 39(1)(d) of the IRO, a settlement arrived at in course of conciliation proceedings, shall "be binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date". As such the rights of those workmen have also been fully safeguarded who are not members of a categorywise trade union and which is also a CBA.
5. Apart from above, I am of the view that it is upto the appellant union to find out ways and means for the fulfilment of the aims and objects of the union. In the words of the Labour Court, East Pakistan, "whatever may be the defect of law, the Court has no right to impose any idealistic injunction on the legislature". I am also conscious of the fact that after the registration, even without having been declared as CBA, there will be available to a registered trade union certain other important rights such as immunity from punishment for criminal conspiracy and legal proceedings for breach of contract etc. And we are not supposed to deprive the appellant union of at least such rights by refusing registration simply because there is apprehension of certain difficulties in determining it as Collective Bargaining Agent.
6. It would be of advantage if the opinion of Mr. K.D. Srivastava, the author of " Law Relating to Trade Unions in India" Second Edition, at page 11, is quoted on this point which is as under:- "Although unions covering all workers without distinction of craft or category, either at the plant or industry level, are now the general pattern, craft unions have also come up in air transport, in some sections of ports and docks, and in industrial units based on modern technology. Skilled workers in these industries find or apprehend that their interests will not be protected by a general purpose union. They argue that the increasing complexity of modern industry makes it difficult for industrywise unions to function effectively and smoothly and that the growth of technology and new skilled demand craft unions to serve such specialised interests. Lack of homogeneity and rivalries between workers belonging to different craft groups have also prompted formation of separate associations.
' We are conscious that unions being democratic and voluntary institutions, the basis on which a union should be organised is a matter to be determined by workers themselves, in the light of their own needs and experience. We also recognise that unions regard this right as basic to their democratic functioning. The political environment within which unions work, and the wider range of services which their members will require them to provide also influence their structure. It is, therefore not our intention to draw up a scheme for structural reform of unions. They have to grow according to the dictates of their members but within the constraints set on them by the laws of the land...."
7. In view of above, I am of the opinion that the registration of the appellant union should not be refused otherwise the intention of the legislature which is quite clear and unambiguous, will be defeated and there will also be lot of repercussion in the Labour field particulary on those number of categorywise registered trade unions which are already functioning.
' M.S.H. QURAISHI (CHAIRMAN).---The question before us is not so much of formation of a trade union as it is of its registration under the IRO. Registration confers certain rights on a Trade Union. It is a pre-condition, inter alia, to certification of a union as a Collective Bargaining Agent (CBA).
Under section 22 a registered trade union in an establishment or a group of establishments, if it is the only registered trade union, subject to certain condition as to the strength of its membership, is to be certified to be the CBA for such etablishment or group. Where there are more registered trade unions than one, then the one which succeeds in a secret ballot held for the purpose is to be certified as CBA. According to section 43, no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a CBA. According to section 39 a settlement if any arrived at in the course of a conciliation proceedings, or otherwise, between the employer and the CBA or an award of Arbitrator or an award or decision of a Labour Court/Tribunal/Commission, shall be binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date". A collective bargaining agent, in relation to an establishment or group of establishments, is under section 22(12) entitled to undertake collective bargaining with the employer to represent all or any of the workmen in any proceeding, to give notice of declaration of a strike in accordance with the provisions of the Ordinance and to nominate representatives of workmen on the Board of Trustees of any Welfare Institutions or Provident Fund and of the Workers'
Participation Fund. A workman in the etablishment may seek redress of his grievance through his CBA under section 25-A.
A registered trade union certified to be a CBA, thus, acts as the representative of all the workers in the establishment irrespective of the fact whether a worker is or not a member of that union. Such representative capacity can be possible, only if its doors are open to all workers in the establishment and not if it restricts its membership only to a particular class of workers. Since the registration of a trade union is not the end of the matter itself, as various rights and duties flow from it under the law, a registered Trade Union in order to claim such rights and discharge such duties must. Enjoy a repesentative capacity which will be possible only when it has its membership open to all the workers in the establishment. Even though such requirement be not express, it nevertheless, exists by implication, section 6 which lists the "requirements for application" for registeration directs that every such application shall be accompanied by-- " (a) A statement showing .,..
(iv) statement of total paid membership and (iv-a) the name of the establishment, or group of establishments, of the industry, as the case may be, to which the trade union relates alongwith a statement of the total number of workers employed therein."
' Again section 7 which spells out "requirements for registration" denies entitlement to registration, to a trade union in an establishment or group of establishments where there are two or more registered trade unions, unless it has as its members not less than 1/5th of the total number of workmen employed in such establishment or group of establishments .
' Under section 22 a registered trade union if it be the only such union in the establishment will be entitled to certification as CBA if it has as its members not less than one-third of the total number of workmen employed in the establishment. Where there be more than one registered trade unions in the establishment, a secret ballot would be held to determine the CBA, upon an application made by a registered Trade Union which has as its members not less than one-third of the total number of workmen employed in the establisment. Even receiving the highest number of votes in the secret ballot held for the purpose will not entitle a trade union to be certified as CBA unless the number of votes received by it is not less than one-third of the total number of workmen employed in the establishment.
' These requirements linking the membership of the trade union with the total number of workers employed in the establishment are not without meaning. In the first place, they signify a relationship between the membership of a union and the total number of workers employed in the establishment. In the second place, a minimum of membership in relation to the total number of workers in the establishment has been prescribed as a measure of the representative capacity of the trade union seeking to act as CBA. Can a trade union formed exclusively of a particular class of workmen and registered as such which gets certified to be a CBA under subsection (1) or (9) of section 22, claim to represent all the workmen in the establishment. Can it enter into bargaining with the employer ,on behalf of the workers whom it has barred from joining its membership. Can a settlement if any reached in the result of such bargaining validly bind those workers from whom it cannot claim to enjoy any mandate. All these questions will arise to which the logical answer has to be in the negative. A trade union can claim no moral or legal right to represent a worker for whom it has kept its doors closed. The scheme of the IRO can work only if the membership of a trade union is open to all the workers in the establishment and not if different classes of employees have their own different unions. If the different classes of workers were to have their own exclusive unions, then none can validly claim to represent all the workers in the establishment, or to negotiate a settlement on their behalf or to cause a settlement, if any reached, to be binding on them. Thus the policy of the law in regard to collective bargaining will be frustrated.
' This difficulty was foreseen by the Labour Court in the East Pakistan Airlines Pilots Association v.
The Registrar of Trade Unions, Government of East Pakistan 1971 PLC 42 and although on the interpretation of section 3(a). Of the IRO, the East Pakistan Airlines Pilots Association was allowed to have its trade union registered but it was observed-- "Of course there could be some practical difficulties as pointed out by the Registrar of Trade Unions in determining the collective bargaining agent and in representing the different categories of workers within an establishment We are quite aware of the fact that an Association of the present type with the present constitution might create difficulties in the practical fulfilment of its objects and might create other difficulties within the workers of the same establishment. But even then as there is no bar in the present Ordinance for forming such a Union, we are of the opinion that the Registrar of the Trade Unions cannot refuse registration to the appellant union.."
' It is to be noted that at that time section 22-EE had not been enacted. Under this section which was introduced by Act XVI of 1975, one or more Collective Bargaining Units (CBUs) in an establishment or group of establishments can be determined if it is found necessary, just and feasible to do so for safeguarding the interest of the workmen in relation to collective bargaining.
The difficulty which was foreseen by the East Pakistan Labour Court in East Pakistan Airlines Pilots Association's case was removed by the enactment of section 22-EE and a trade union formed solely for the benefit of a particular class of workers may now seek the creation of a separate CBU for that class of workers. Unless that is done it is difficult to conceive of exclusive trade unions functioning in the same establishment. It was on appreciation of this aspect of the matter and the change in the law brought about by the introduction of section 22-EE that the Full Bench of this Commission in the case of Sui Northern Gas Workers' Union, Lahore 1977 PLC 167 held that no Trade Union can be registered with the Commission for only a branch of the establishment. Relying on this ruling the Labour Appellate Tribunal in Kaleem Rabbani v. National Bank of Pakistan Workers Union, Lahore District 1980 PLC 188 held that:- "It may, however , be observed that the whole of National Bank of Pakistan is one establishment and as such no Union should have been registered for a part of the establishment as has been held: by N.I.R.C. In the case "Sui Northern Gas Workers' Union, Lahore reported in NLR 1978 Labour 174.
This view is also supported by clause (iv-a) of section 6 of Industrial Relations Ordinance, 1969. The registration of the Employees' Union in 1974 could not, therefore, have been availed of for the purpose of determination of C.BA. For the Lahore CBU created under section 22-EE in 1976, which was added by amendment of 1975. It is only after the amendment of the section that the union can be registered for a part of the establishment, which has been declared to be C.B.U.".
The proper course for the appellant union, therefore, is to first seek declaration of a CBU of Journalists in the establishment. Until that is done they cannot press their case for registration of their trade union which is only for a part of the present establishment. The registration sought, if allowed will virtually amount to bypassing the provision of section 22-EE. The registration sought were possible where there is no system of a statutory collective bargaining agent or no provision like that of section 22-EE.
' I, therefore, agree with the view that the appeal is liable to be dismissed.
' DECISION OF THE BENCH: According to majority view the appeal is dismissed. .