008-SLLR-SLLR-1992-2-INDUSTRIAL-GENERAL-WORKERS-UNION-v.-P.-C.-IMBULANA-AND-OTHERS.pdf
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Sri Lanka Law Reports
(1992] 2 Sri L.R.
INDUSTRIAL & GENERAL WORKERS UNION
v.P. C. IMBULANA AND OTHERS
COURT OF APPEALH. W. SENANAYAKE, J.C.A. 432/88A/203311 MAY 1992.
Writs – Certiorari – Industrial Law- Collective Agreement – Validity of extension ofselected clauses of the agreement.
It is only the entirety of a Collective Agreement that could be extended and notselected clauses.
CA
Industrial & General Workers Union v. P. C. Imbulana and Others
(Senanayake, J.)
261
Case referred to:
Jones v. Balasubramaniam. S.C. Appeal No. 58/81 CA Appeal No. 700/76 M.C.Colomblo 72083/A SC'Minutes of 18.5.82
APPLICATION for Writs of Certiorari and Mandamus.
V. Vivekananda with C. Hewamanna and F. V. Puvithana for PetitionerChula de Silva, P.C. with M. Hussain tor 4th Respondent.
Cur. adv. vult.
11th September, 1992SENANAYAKE, J.
The Petitioner had filed this application for Writs of Certiorari andor Mandamus to quash the Award made by the 3rd Respondentpublished in the Government Gazette dated 25.11.77 as X6.
The facts briefly are as follows. The 4th Respondent Company waspaying the member of the Petitioner’s Union a non-recurring cost ofliving allowance for a period of over 10 years and the 4th Respondentdiscontinued the payment of non-recurring cost of living allowance(hereinafter referred to as NRCLA) in June 1982 after the decision ofthe Supreme Court in the case of Jones v. BalasubramaniamTheSupreme Court held that the Extension Order made by the Minister(in respect of the Tea Export Industry) under Section 10 of theIndustrial Disputes Act is bad because it deals with only portions ofthe Collective Agreement and not with its entirety that the workers arenow being paid the minimum wages prescribed under the respectiveWages Board decisions and that therefore it is not bound to pay anysum as N.R,C.L.A.
The 3rd Respondent held that he was bound by that decision andheld that, that the non-continuance of the payment of the N.R.C.L.A.to the workers who are members of the Petitioner’s Union was justifiedaccording to law. As such the Petitioner's Union was not grantedrelief.
The learned counsel for the Petitioner submitted that the decisionof the Supreme Court in A. F. Jones v. Balasubramaniam has no
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applicatipn to the matter. But however he conceded that if thedecision of the Supreme Court was that the extension order made bythe Minister of Labour applied only to selected clauses of theCollective Agreement and therefore it was bad in law, the Petitionercannot obtain the relief prayed for. In my view the word bad in lawmeans that the extension order of selected parts of the CollectiveAgreement is of no force in law; in other words it is null and void.
It was an accepted fact that R2 the Collective Agreement of31.07.1991 covered workers of the Engineering Trade and MotorTransport Trade and covered the Members of the Federation andMembers of the Union enumerated in the first schedule of R2 and thescales of R2 and the scales of consolidated monthly wages paid tothe various workers in terms of the second schedule R1. The 4thRespondent Company was not a party to this Collective AgreementR2 but by R3 Gazette No. 14995/8 of 1.2.1972 every Employer on theEngineering Industry employing not less than 25 workers in thatIndustry who were not parties to the Collective Agreement R2 shallobserve either
the terms and conditions set out in clauses 5 to 14 (inclusive)clause 15 (other than that proviso thereof) clause 16, clause 17other than paragraph (2) thereof, clause 18, clause 20, clause 22,clause 26 , clause 27 and clause 35 of the Agreement.
terms and conditions which are not less favourable than theterms and conditions set out in the aforesaid clauses of theAgreement.
The same terms were extended to every employer in the MotorTransport Industry employing not less than 25 workmen in thatIndustry or not less than 10 workman when the Motor TransportIndustry is ancillary to the main business. .
The 4th Respondent Company paid the N.R.C.L.A. according tothe Collective Agreement R2 after the extension order R3 in terms ofclause 17 of the Collective Agreement R2.
The extension order R3 does not extend the whole of the CollectiveAgreement but has sought to apply only certain selected clauses inthe Agreement.
CA
Industrials General Workers Union v. P. C. Imbulana and Others
(Senanayake. J.)
263
Section 8 of the Industrial Disputes Act gives the binding force onthe parties and the terms of the agreement shall be complied with theterms in the contract of employment between the employers andworkmen bound by the Agreement.
Section 10(1) empowers the Minister to make order under 10(2) inrespect of every employer or every employer of such class ofemployers in such Industry in such district or in such industry in SriLanka, on whom such agreement is not binding as provided inSection 8.
Section 10(2) reads as follows …
“The Minister may, in respect of any industry to which any suchCollective Agreement as is referred to in subsection (1) relate: "Makean order that every employer or every employer of any class, in suchindustry in any district or in Sri Lanka on whom that agreement is notbinding as provided in Section I8 shall observe either the terms andconditions set out in that agreement (hereinafter referred to as therecognised terms and conditions) or terms and conditions which arenot less favourable than the recognized terms and conditions.”
Section 10(3) states that an extension order shall have the force oflaw.
The learned counsel for the Petitioner contented that the decisionof the Supreme Court did not declare the extension in R3 to be nulland void. A reading of the judgment of Wanasundara, J. clearlyindicates that the Minister of Labour cannot order an extensionpiecemeal, unless the entirety of the Collective Agreement wasextended. A process of Selection of the clauses would give favouredtreatment to some while others would be at a disadvantage and thiswas not the intention of the Legislature. And in no uncertain languageWanasundara, J. observed “We hold that the Minister’s order underSection 10(2) is bad because it deals with only a portion of theCollective Agreement and not with the entirety." I
I am unable to agree with the submission of the Learned Counsel. Iam of the view the effect of the extension order R3 was of no effect inlaw in view of the aforesaid Supreme Court decision.
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I do not see any merit in the application. In the circumstances Idismiss the Petitioner’s application with costs fixed at Rs. 1050/-.
Application dismissed.