ISLAMABAD: The Supreme Court has held that a contract between employers and labour contractors could not be used as a device to deprive the contract workers of their legitimate and fundamental right of forming union or becoming a part of it.
The judgement was authored by Justice Maqbool Baqar who headed a two-member bench that heard an appeal instituted by Sui Southern Gas Company (SSGC) against the Dec 7, 2018 ruling of the Islamabad High Court (IHC).
The issue pertained to the question whether a worker/workman engaged for rendering service in an establishment was eligible to be registered or enlisted as a voter to participate in a referendum for choosing a Collective Bargaining Agent (CBA) in that establishment or not.
The controversy emerged after the Registrar of Trade Union approved an application of the registered trade union at the SSGC for including the names of their members who were contract employees in the list of voters before holding a referendum.
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The trade union, which was formed with an aim to create harmony amongst the workers to maintain cordial relations with the employer, management and to ameliorate the working relations of the members and workers in the establishment, had contended before the registrar that the company had employed more than 3,000 workers on a contract basis. They had been performing their duties on different posts of permanent nature and out of them 500 employees were members of the trade union, it claimed.
They were engaged by the SSGC directly or through some labour contractors, the trade union representative had contended before the registrar, adding that since those workers were performing their duties on the posts which were of permanent nature, they were entitled to be included in the voters’ list of the trade union. Not including their names in the list would amount to depriving them of their fundamental rights, they contended.
The SSGC through its counsel Asim Iqbal argued before the Supreme Court that since the employees, sought to be registered as voters, were not the employees of the company, rather of
manpower/labour contractors, such employees in view of Section 19(5) of the Industrial Relations Act (IRA) 2012 could not be registered as voters.
In terms of the law, it was contended, only those workers who had completed three-month service as direct employees of the company were eligible to participate in the referendum.
In the judgement, Justice Baqar observed that Section 19(4) of the IRA required the registrar to include in the voters list the name of every workman, whose period of employment, computed in accordance with the section was not less than three months.
The only requirement for the membership of a union was being a workman and for being registered as a voter, the period of employment of such workman in the establishment should not be less than three months, Justice Baqar observed.
The judgement noted that the services that the workers enlisted as voters were rendering were of security guards, janitors, gardeners and of ditching/backfilling and of meter reading etc. The verdict explained the workers performed those functions for the benefit of the company and thus undisputedly rendering services for many years.
Justice Baqar also cited an earlier judgement namely 2013 Fauji Fertilizer Company Ltd in which it was held by the Supreme Court that the relationship of employer and employee did not exist between a company and the workers employed by the contractor, but in the case where an employer retained or assumed control over the means and method by which the work of a contractor was to be done, then the relationship of the employer and the employee existed between the employee and the employees of the contractor. Also, the employee involved in running the affairs of the company under the direct supervision and control of the company, working within the premises of the company involved directly or indirectly in the manufacturing process, would deemed to be employees of the company, the judgement had stated.
The present case, Justice Baqar explained, also fell within the four corners of the principle enunciated by the apex court in the case of Fauji Fertilizer Company Ltd. Therefore, the judgement said, the workers enlisted as voters were performing their duties and functions for the benefit of the SSGC and were admittedly so serving for many years.
The purported arrangement/ contract between the company and their purported labour contractors could not be allowed to be used as a device to deprive the workers of their legitimate and fundamental right of forming a union or becoming part of it, the judgement said.
Published in Dawn, May 23rd, 2020