1. AWARD The General Secretary, Pakistan Refinery Labour Union, Karachi has submitted this application containing three demands for Directions under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, and has contended that it represents the workers employed at the establishment of Pakistan Refinery Limited, Korangi through Contractors who are respondents Nos. 2 and 3 in this case, lt has been stated that the number of workers employed by respondent No. 1 is about 180, by respondents Nos. 2 and 3 is 140 and that all these 320 workers are employed on permanent basis for the last 5 to 10 years. According to the applicants the respondents Nos. 2 and 3 supply workers to respondent No. 1 who carry out their duties through their managerial statf.
2. It has also been stated by the applicants that the then Central Labour Commissioner, Karachi had issued Directions on 23rd January 1973 on their demands but these Directions were not notified. It has been contended that the respondent No. 1 has not been paying bonus in accordance with the settlement arrived at with the Pakistan Refinery Employees' Union nor are they allowing facilities as are being allowed to the workers in the Refinery. Similarly they have also not been paid workers' share under the Companies Profits (Workers' Participation) Act, 1968. The respondent No. 1 in their reply statement have stated that the workmen employed by the Refinery are represented by the Pakistan Refinery Employees' Union which is a Collective Bargaining Agent of the said workmen and has been entering into settlements with the Company from time to time. They have filed copies of the settlement which have been arrived at between this Union and Management on different dates. They have asserted that apart from 192 workmen they do not employ any other workman who could be said to be in the employment of the Company directly or indirectly through any labour contractor. According to the respondent they enter into contracts from time to time to give specific jobs or works to independent contractors. They have also stated that respondent No. 2 has been a major contractor since the very inception of the Company and that this respondent No. 2 maintains his own establishment and employs his own workmen. It has also been mentioned that some time in 1974, the respondent No. 2 took over Canteen Contract when the Canteen Contract of Ch. Masood Ahmed was terminated. The said catering contractor has in his employment 28 workmen, whose services were terminated by the said catering contractor after payment of full legal dues. According to the respondent No. 1 the respondent No. 2 offered fresh employment to the terminated workmen of Ch. Masood Ahrr-ed and took the said workmen in his employment. It has been pointed out by the respondent No. 1 that about 120 workmen employed by respondent No. 2 are in his direct and immediate employment as he issues appointment letters, fixes their wages, pays them their wages, allocates works to them, regulates the terms and conditions of their service, and engages and terminates their employment and is responsible for fulfilling all his legal obligations as an employer of the said 120 workmen and that similar is the case with respondent No. 3. The respondent No. 1 has submitted copies of job contract between them and respondents Nos. 2 and 3. The respondent No. 1 has also pointed out that applicant-Union has been addressing letters to the Company and submitting demands but these letters were not replied to by the Company because the applicant-Union was not a CBA for the Company's workmen and it was composed of workmen who were not in the employment of the Company. The respondent No. 1 has also referred to an award of the then Central Labour Commissioner dated 10th August 1972 whereunder the respondent No. 2 and other contractors were directed to give certain monetary and other benefits to the workmen employed by them. The respondent No. 2 in his reply statement has mentioned that he employed the total work force of about 120 workmen to carry out the work contracts entrusted to him by respondent No. 1 and that these workmen are in his direct employment and he was their employer. It has also been admitted by the respondent No. 2 that they themselves supervise their work, grant them their leave, pay them their wages, allocate works to them, appoint them on the jobs and terminate their services when they are no more required. It has further been pointed out that they also pay their social security contributions to the Social Security Institution and have also taken out a Group Insurance for the said workmen. According to respondent No. 2 the applicaot- Union is composed primarily of the workmen employed by him and by respondent No. 3. It has also been pointed out that respondent No. 2 has already confirmed to the applicant-Union that they (Western Engineering Works) were employer of the workmen who were members of the applicant-Union. The respondent No. 3 in his reply statement has also stated that the workers were employed directly by him. I shall now deal with the demands submitted by the applicant-Union. The Union has demanded that Pakistan Refinery Ltd., Korangi should take on their pay rolls with continuity of service from the date of appointment with all back benefits and terms and conditions of employment prevailing in the Refinery from time to time and arrears be paid to all the workers employed through contractors M/s. Western Engineering Works and Mr. Chand Khan. The reply statement submitted by the Refinery and contractors go to prove beyond doubt that the workers who are members of the applicant- Union were directly engaged by the contractors who have also admitted that they and not the Refinery are their employers. This being the position, I find no justification for accepting this demand against the Refinery which is not the employer of these workers. It has also been pointed out in the written statement by the respondents Nos. 2 and 3 that the officers of the Refinery had no control or supervision over their workers and that they had employed their own supervisory staff for the purpose. Since relationship of employer and employee has not been established between Pakistan Refinery Ltd. and members of the applicant-Union whereas on the other hand this relationship exists between the contractors i.e. respondents Nos. 2 and 3 and the workers who are members of the Labour Union (the applicant), I feel it is not within my competence to regulate terms and conditions of employment of workers vis-a-vis respondent No. 1 i.e. the Pakistan Refinery Limited. As such I reject this demand of the applicant which has been made against the respondent No. 1 who is not their employer. The second demand of the Union relates to the payment of four per cent, share under Companies Profits (Workers' Participation) Act, 1968 which was paid by the Refinery to their so-called regular workers. As has already been concluded under Demand 1 above, those workers were not employees of the Refinery and a9 such question of payment of any profits under the above said Act does not arise. As far the respondents Nos. 2 and 3 are concerned it will have to be ascertained whether the law relating to workers' participation in profits is applicable to these respondents and if so they would be liable to pay the amount in accordance with the provisions of the law. Both the respondents have contended that the above said law was not applicable to their establishments.
3. The applicant-Union has not contested this claim of these two respondents. Even otherwise I feel the directions on this demand are not called for because the applicants could approach the appropriate forum for payment of workers' share in profits, in case, the law was applicable to these two respondents. Section 5 of the Companies Profits (Workers* Participation) Act, 1968 provides that where any Company fails to comply with the provisions of section 3 which relates to establishment of Workers' Participation Fund, the Federal Government may by order in writing require it to comply with those provisions within such time as may be specified in the order. Section 7(2) of the said Act further provides that all claims of a worker relating to the benefits of the scheme, whether against the Board or the company shall be settled in the same manner as is provided for in the Payment of Wages Act, 1934 for the settlement of claims arising out of deductions from wages. I, therefore, reject this demand of the applicant-Union. The third demand of the applicants relates to fixation of grade of the workers either by the Refinery or by the respondents Nos. 2 and 3 as under and to place all the workers in the new grades and after the workers are placed in the new grades they be given three special increments in their grades :-- (a)
4. Cooks, Fitters ... ... ... ... 500--50--1000 (b) Workshop and Civil Department workers, helpers 350--35-- 700 (c) Tandoorwala, Bearers and other Canteen workers 300--30--600 Peons, Drivers, Gardeners, Sweepers and General Workers. It has been stated by the applicant that the workers employed directly by respondent No. 1 are getting three times more wages and benefits than the workers employed through contractors i.e. respondents Nos. 2 and 3 although the nature of job of the workers is similar. It has also been pointed out that the cost of living and expenses of the workers due to increase in size of family has gone up considerably. The respondents No. 1 in their reply statement have submitted that this demand has been wrongly addressed to respondent No. 1 and it must be addressed to the employer of the workmen i.e. respondents Nos. 2 and 3. It has been stated by respondent No. 2 that existing rates of pay scales of the workmen employed by them are very reasonable and compare very favourably with other contracting firms of the region. He has also pointed that the wages of the workmen were increased pursuant to the Award dated 15 August 1972 of the then Central Labour Commissioner and that there is no justification whatsoever to compare the salary of the workmen employed by the respondents with the workmen of Pakistan Refinery Limited. The statement of rates of wages submitted by the respondent No. 2 indicates that a Fitter is already being paid a basic wage of Rs. 415 and his total monthly emoluments amount to Rs. 560.34. He is also entitled to fringe benefits of Rs. 180.50 in addition to the above emoluments.
5. Similarly a Helper is already getting Rs. 218 as basic wage plus Rs. 134 as allowance and Rs. 105.18 as fringe benefits. The general workers are already getting Rs. 218 as stated by the respondent No. 2.
6. The respondent No. 3 has also stated that he is already paying reasonable wages to his workmen and that the minimum wages fixed for the workmen is although Rs. 140 per month yet he is paying Rs. 234 per month which is a very reasonable pay for a Mali. The demands made by the Union actually amount to abolition of the contract system as prevalent in the National Refinery. This contract system is in vogue in many organizations with a view to getting the jobs done economically. The contractors have to maintain their own establishments and would like to earn some profits out of this business. It will be unjust to expect the contractors to pay the same wages to the same categories of the employees as such a proposition will leave little margin of profits for them. The contract system has its own merits and demerits but the fact remains that the workers employed by the contractors could not be deemed to be the employees of the Refinery and as such not entitled to all the benefits being allowed to the workers employed direotly by the Refinery.
7. The demand for increase in wages will, therefore, have to be examined in this perspective. It has been pointed out by the respondent No. 2 that they had increased the wages of the workers in the year 1972. I feel that the cost of living has increased enormously during these 3 years and there was justification for a proportionate increase in wages of the workers. I am not in favour of allowing the same scales of pay as are being allowed to the Refinery workers but still I feel some increase in wages is justified. The Union has not submitted any statement to show the wages being paid to these categories of workers by the Refinery nor have they submitted any comparative statement.
8. However, keeping in view the position as stated above, I direct that all the categories of workers employed by the respondents Nos.' 2 and 3 should be given an increase of 10 per cent, in their existing basic wages from lst September 1974.