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July 30, 2020

For negotiating terms of pilots’ service in PIA: PALPA cannot claim itself as CBA, says SHC

National

July 30, 2020

KARACHI: The Sindh High Court on Wednesday observed that the Pakistan Airline Pilots’ Association (PALPA) may have a legal status as a society to act for the betterment of its members but cannot claim as a matter of right to be a representative body or a Collective Bargaining Agent for negotiating the terms and conditions of the service of the pilots in Pakistan International Airlines.

The court also stayed the civil proceedings of PALPA with regard to Ministry of Interior notification for enforcement of mandatory service law on all classes of employment in PIA and the national flag carrier’s letter regarding de-recognition of association, etc, in PIA and termination of working agreements on application of PIA.

PALPA’s counsel contended that PALPA had entered into a working agreement with PIA lastly in 2011-2013, which by virtue of clause 1.4 and 1.6 still subsists and the impugned letter of PIA has unilaterally derecognized PALPA and has terminated the said agreement without notice. The counsel submitted that there was no termination clause in the agreement as it has been agreed that the agreement would continue and will remain in force until the terms are revised or a new agreement is arrived at. He submitted that PIA has no authority to unilaterally terminate the said agreement as Pakistan International Airlines Corporation (Conversion) Act of 2016 duly recognizes that all existing contracts would continue and PIA will abide by the terms of such contracts.

He submitted that impugned notification issued under Section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 has been issued without forming a valid opinion by the federal government and ultra vires as Act would only apply to employment under the federal government whereas the pilots are not employees of the federal government but have been appointed by the board of directors of PIA. He also submitted that since PIA has failed to identify any breach of the agreement, the matter cannot be referred to arbitration and requested the court to suspend the impugned notifications.

PIA’s counsel contended that Clause 1.8 of the working agreement covers the present dispute as to whether in absence of a termination clause can PIA terminate the agreement or not and it is for the arbitrator to decide that whether such act of PIA is lawful. He said that word all disputes covers termination as it is the case of PIA that they cannot continue with this working agreement, which is tilted in favour of the plaintiffs hence cannot be performed any further. He added that PALPA cannot abdicate itself from referral of the matter to arbitration.

The counsel further submitted that impugned letters of PIA is independent and has got nothing to do with the Ministry of Interior’s mandatory service law. He submitted that PALPA has been derecognized through PIA’s April 30 letter and so also the agreement has been terminated, including all past administrative orders issued by PIA through admin order 5/2020 wherein PIA is not willing to negotiate with PALPA any further at least to the extent of terms and conditions of service of pilots.

He said that plaintiffs are not entitled for status-quo ante inasmuch as through impugned notice PALPA already stands derecognized and no mandatory injunction can be granted as there was no question of violating any constitutional rights of PALPA as claimed in terms of Article 17 inasmuch as they may form an association. But it is only the right to enter into negotiations with PIA, which is being derecognized as it is not backed by any statutory provisions or even in terms of Article 17 of the Constitution. He submitted that even a Collective Bargaining Agent under the Industrial Relations Ordinance, 1969 or presently Industrial Relations Act, 2012, cannot negotiate outside the very mandate of the statute as settled by the Supreme Court in a number of cases.

The SHC’s single bench, headed by Justice Mohammad Junaid Ghaffar, observed that plaintiffs cannot deny that except their registration under the societies Act, there was no other statutory protection available to PALPA insofar as their representative capacity on behalf of the pilots is concerned.

The court observed that PALPA are not representing the employees of a grade, which fall within the Industrial Relations Act, 2012 and who have a right to join a trade union and then elect a Collective Bargaining Agent to negotiate on their behalf with PIA.

The court observed admittedly all pilots are in a higher bracket or class of the employment and PIA has categorically stated that it is only to the extent of the representative capacity of PALPA to negotiate the terms and conditions of service of the pilots, which was being disputed and not any other activity, which they may enter into for the collective benefits of their members.

The court observed that PIA is no more willing to treat PALPA as a body, which can enter into negotiations with regard to the working conditions of PIA’s pilots and it has not disputed or derecognized any other independent and individual activity of PALPA according to their own charter and the memorandum of association. The court observed that mere registration under the societies act does not create any statutory obligations on an employer to enter into negotiations in respect of the terms and conditions of service of the members of such a society.

The court observed that Industrial Relations Act, 2012 has specifically provided formation of a trade union and election of a CBA to a certain category of employees for which the pilots stand disqualified, then recourse to the societies Act cannot be equated or termed parallel for PALPA to act as a representative body or a CBA with regard to the terms and conditions of service of the pilots.

The court observed that PALPA may have a legal status as a society to act for the betterment of its members, but cannot claim as a matter of right to be a representative body or a CBA for negotiating the terms and conditions of the service of the pilots in PIA. The court observed that PALPA have no prima facie case nor balance of convenience lies in their favor, whereas, irreparable loss, if any, would be caused to PIA if the impugned notice of termination is suspended.

The court observed that interior ministry’s notification with regard to enforcement of mandatory service law has been lawfully issued in terms of the 1952 Act, and no exception can be drawn. The court observed that there is an arbitration clause in the agreement and termination of the agreement falls within all disputes as provided in clause 1.8 of the agreement and parties must go for arbitration according to the agreed terms. The court allowed the PIA application and stayed the civil proceedings of PALPA, asking parties to go for arbitration according to the agreed terms.