Unfair Labour PracticesConcept of Fairness‘Fairness’ can be used as a synonym for equitable, reasonable, impartial, just, honest,balanced, according to the rules, right1. All these synonyms contain a high degree of ethicaland moral notions and consequently so do the notion of fairness. 2 As such the notion offairness is not only difficult to define but is also flexible. 3 Different people from differentcultures and backgrounds also might have different views as to exactly what constitutesfairness. As Baxter points out, fairness is a concept that is ambiguous and difficult toascertain. Consequently its meaning must be deduced with reference to surroundingcircumstances.Background of labour practices4The main concern of labour relations is on the relationships that exist between the employerand the employee, and the labour practices that arise from the interests of such relationships(Cooper, 2005). Labour relations can be of both international and domestic form and all dealwith matters such as remuneration, job security, minimum wages, health and safety, socialsecurity and working time amongst others (Holley, Jennings, and Wolters, 2011). Any formof violations of such laws by employers or unions is therefore termed as unfair labourrelations.Any employment relationship has three stages: 1. a beginning: when the employee applies for employment 2. a middle: as long as the employment relationship continues 3. an end: when the employee is dismissed, resigns or retiresUnfair conduct of an employer during the course of employment 1. refusal to promote or demotion 2. unfair conduct during the course of the probation period 3. refusal to provide benefits or training 4. unfair suspension 5. disciplinary action short of dismissal such as warnings or suspension without pay or transfersH.D. Singh vs Reserve Bank Of India & Ors5The 5th Schedule to the Industrial Disputes Act contains a list of unfair labour practices asdefined in Section 2(ra). Item 10 reads as follows:"To employ workmen as badlis, casuals or temporaries and to continue them as such foryears, with the object of depriving them of the status and privileges of permanent1 See Poolman Principles of Unfair Labour Practices (1985) 42,and SADWV v Master Diamond CuttersAssociation of SA 1982 ILJ 87 (IC)2 In The Press Corporation 1992 ILJ 391 (A) at 400 C Grosskopf JA in referring to the determination of unfairlabour practices stated: ‘In my view a decision of the court pursuant to these provisions is not a decision on aquestion of law in the strict sense of the term. It is the passing of a moral judgment on a combination offindings of fact and opinions3 See Cameron, Cheadle and Thompson The New Labour Relations Act (1989) at 1394 http://customwritingtips.com/component/k2/item/12016-research-paper-on-unfair-labor-practice.html?tmpl=component&print=15 1986 AIR SC 132, 1985 SCR Supl. (2) 842
workmen." We have no option but to observe that the bank, in this case, has indulged inmethods amounting to unfair labour practice. The plea that the appellant was a badli workeralso has to fail.Haryana State Electronics Development Corporation Ltd. v. Mamni6Therein the action on the part of the employer to terminate the services of an employee onregular basis and reappoint after a gap of one or two days was found to be infringing theprovisions of Section 25-F of the Industrial Disputes Act. This Court held: In this case theservices of the respondent had been terminated on a regular basis and she had beenreappointed after a gap of one or two days. Such a course of action was adopted by theAppellant with a view to defeat the object of the Act.Union of India and Ors. v. Ramchander and Anr. (2005) 9 SCC 365Wherein again engagement of the workman on a regular basis for a period of 89 days oneach occasion was held to be impermissible in law stating:The respondents were appointed against casual labourers but nevertheless they continued inservice for four spells and that too their reappointments were made immediately within afew days of termination on completion of 89 days. It shows that sufficient work wasavailable with the employer and had there been no termination on completion of 89 days,they would have completed 240 days of continuous employment. In that view of the matterthe appellants had violated Section 25-G of the Industrial Disputes Act. We do not find anyerror or illegality in the decision rendered by the Division Bench. We direct the appellantsto re-employ the respondents as daily-wagers. In that case, this Court did not lay down anylaw having universal application. Directions were issued in the facts and circumstances ofthe case. It is worthwhile to note that this Court did not direct regularization of services ofthe workman but merely directed Appellants therein to reemploy Respondents as dailywagers. The said decision, therefore, does not have any application in the instant case .[THE MAHARASHTRA RECOGNITION OF TRADE UNIONS ANDPREVENTION OF UNFAIR LABOUR PRACTICES Act, 1971]An Act to provide for the recognition of trade unions for facilitating collective bargainingfor certain undertakings; to state, their rights and obligations; to confer certain powers on,unrecognised unions; to provide for declaring certain strikes and lock-outs, as illegal strikesand lock outs; to define and .provide for the prevention of certain unfair labour practices;to constitute courts, (as, independent machinery) for carrying, out the purposes of , "according recognition to trade unions and .for enforcing the provisions relating to unfairpractice to provide for matters connected with the purposes aforesaid..Sec- 3(16) “unfair labour practices" means unfair labour practices as defined in section 26CHAPTER VI (UNFAIR LABOUR PRACTICES)Sec-26: In this Act, unless the context requires otherwise, unfair labour practices meanany of the practices listed in Schedules II, III and IV.76 MANU/SC/8137/2006 : (2006)IILLJ744SC7 [THE MAHARASHTRA RECOGNITION OF TRADE UNIONS AND PREVENTION OF UNFAIR LABOURPRACTICES Act, 1971]
[THE MAHARASHTRA RECOGNITION THE INDUSTRIAL DISPUTES ACT 1947OF TRADE UNIONS AND PREVENTIONOF UNFAIR LABOUR PRACTICES Act,1971]SCHEDULE II THE FIFTH SCHEDULE See Section 2(ra) Unfair Labour PracticesUnfair Labour Practices on the part of I. On the part of employers andemployers trade unions of employers.. .1. To interfere with, restrain or coerce 1. To interfere with, restrain from, or coerce,employees in the exercise, of their right to workmen in the exercise of their right to organise,organise, form, join or assist a trade union and form, join or assist a trade union or to engage into engage in concerned activities for the concerted activities for the purposes of collectivepurposes of collective bargaining or other bargaining or other mutual aid or protection, thatmutual aid or protection, that is to say- is to say:(a) Threatening employees with discharge or (a) Threatening workmen with discharge ordismissal, if they join a union; dismissal, if they join a trade union;(b) Threatening a "lock out or closure, if a union (b) Threatening a lock-out or closure, if a tradeshould be organised; union is organised;(c) Granting wage increase to employees of (c) Granting wage increase to workmen at crucialcrucial period of union organisation, with view to periods of trade union organisation, with a view toundermining the efforts of the union at undermining the efforts of the trade unionorganisation. organisation.2. To dominate, interfere" with, or contribute, 2. To dominate, interfere with or contributesupport-financial or otherwise- to any union, that support, financial or otherwise, to any trade union,is to say- that is to say:(a) an employer taking an active interest in (a) an employer taking an active interest inorganising a union of his employees; and organising a trade union of his workmen; &(b) An employer showing partiality or granting (b) An employer showing partiality or grantingfavour to one of several unions attempting to favour to one of several trade unions attemptingorganise his employees or to its members, to organise his workmen or to its members, wherewhere such a union is not a recognised union. such a trade union is not a recognised trade3. To establish employer sponsored unions. union. 3. To establish employer sponsored trade unions4. To encourage or discourage membership in of workmen.any union by discriminating, against any 4. To encourage or discourage membership inemployee, that is to say- any trade union by discriminating against any
(a) Discharging or punishing an employee workman, that is to say:because he urged other employees to join or (a) discharging or punishing a workman, becauseorganise a union; , he urged other workmen to join or organise a(b) Discharging or dismissing an employee for trade union;taking part in any strike (not being a strike which (b) discharging or dismissing a workman foris deemed to be an illegal strike under this Act) ; taking part in any strike (not being a strike which(c) Changing seniority rating of employees is deemed to be an illegal strike under this Act);because of union activities; (c) changing seniority rating of workmen because(d) Refusing to promote employees to higher of trade union activities;posts on account of their union activities; (d) refusing to promote workmen to higher posts(e) Giving unmerited promotions to certain on account of their trade union activities;employees, with a view to show discord (e) giving unmerited promotions to certainamongst the other employees,-or to undermine workmen with a view to creating discord amongstthe strength of their union; other workmen, or to undermine the strength of(j) Discharging office-bearers or active union their trade union;members, on account of their union activities. (f) Discharging office-bearers or active members5. To refuse to bargain collectively, in good of the trade union on account of their trade unionfaith, with the recognised union. activities.6. Proposing or continuing a lock-out deemed tobe illegal under this Act.SCHEDULE IVGeneral Unfair Labour Practices on thePart of employer1. To discharge or dismiss employees-(a) by way of victimisation ;(b) not in good faith, but in colourable exercise 5. To discharge or dismiss workmenof the employers rights; (a) by way of victimisation;(c) by falsely implicating an employee in a (b) not in good faith, but in the colourable exercisecriminal case on false evidence or on concocted of the employers rights;evidence; (c) by falsely implicating a workman in a criminal(d) for patently false reasons; case on false evidence or on concocted evidence;(e) on untrue or trumped up allegation of (d) for patently false reasons;absence without leave; (e) on untrue or trumped up allegations of(f) in utter disregard of the principles of natural absence without leave;justice in the conduct of domestic enquiry or (f) in utter disregard of the principles of naturalwith undue haste; justice in the conduct of domestic enquiry or with(g) for misconduct of a minor or technical undue haste;
character, without having any regard to the (g) for misconduct of a minor or technicalnature of the particular misconduct or the past character, without having any regard to the naturerecord of service of the employee, so as to of the particular misconduct or the past record oramount to a shockingly disportionate service of the workman, thereby leading to apunishment. disproportionate punishment.2. To abolish the work of a regular nature beingdone by employees, and to give such work to 6. To abolish the work of a regular nature beingcontractors as a measure of breaking a strike. done by workmen, and to give such work to3. To transfer an employee’s mala fide from one contractors as a measure of breaking a strike.place to another, under the guise of following 7. To transfer a workman mala fide from onemanagement policy. place to another, under the guise of following4. To insist upon individual employees, who management policy.were on legal strike, to sign a good conduct- 8. To insist upon individual workmen, who are onbond, as a pre-condition to allowing them to a legal strike to sign a good conduct bond, as aresume work.. pre-condition to allowing them to resume work.5. To show favouritism or partiality to one set ofworkers, regardless of merits. 9. To show favouritism or partiality to one set of6. To employ employee as "badlis ", workers regardless of merit.casuals or temporaries and to continue 10. To employ workmen as "badlis",them as such for years, with the object casuals or temporaries and to continueof depriving them of the status and them as such for years, with the object ofprivileges of permanent employees. depriving them of the status and7. To discharge or discriminate against any privileges of permanent workmen.employee for filing charges or testifying against 11. To discharge or discriminate against anyan employer in any enquiry or proceeding workman for filing charges or testifying against anrelating to any industrial dispute. employer in any enquiry or proceeding relating to8. to recruit employee during a strike which is any industrial dispute.not an illegal strike 12. To recruit workmen during a strike which is9. Failure of award, settlement or agreement not an illegal strike.10. To indulge in illegal strike, force or violence. 13. Failure to implement award, settlement or agreement. 14. To indulge in acts of force or violence. 15. To refuse to bargain collectively, in good faith with the recognised trade unions. 16. Proposing or continuing a lock-out deemed to be illegal under this Act.
SCHEDULE III THE FIFTH SCHEDULEUnfair Labour Practices on the part of II. On the part of workmen andTrade Unions trade unions of workmen1. To advise or actively support or instigate any 1. To advise or actively support or instigate anystrike deemed to be illegal under this Act. " strike deemed to be illegal under this Act.2. To coerce employees in the exercise of their 2. To coerce workmen in the exercise of their rightright to self-organisation or to join unions or to self-organisation or to join a trade union orrefrain from joining any union, that is to say- refrain from joining any trade union, that is to say :(a) For a union or its members to picketing in (a) for a trade union or its members to picketing insuch a manner that non striking employee are such a manner that non-striking workmen arephysically debarred from entering the work physically debarred from entering the workplace. places;(b) to indulge, in acts of force or violence or to (b) to indulge in acts of force or violence or to holdhold out threats of intimidation in connection out threats of intimidation in connection with awith a strike against non-striking employees or strike against non-striking workmen or againstmanagerial staff managerial staff.3. for a recognised union to refuse to bargain 3. For a recognised union to refuse to bargaincollectively in good faith with the employer. collectively in good faith with the employer.4. To indulge in coercive activities against 4. To indulge in coercive activities againstcertification of a bargaining representative. certification of a bargaining representative.5. To stage, encourage or instigate such forms 5. To stage, encourage or instigate such forms ofof coercive actions as wilful " go slow" squatting coercive actions as wilful "go slow", squatting onon the work premises after working hours or " the work premises after working hours or "gherao"gherao " of any of the members of the of any of the members of the managerial or othermanagerial or other staff. staff.6. To stage demonstration at the residences of 6. To stage demonstrations at the residences ofthe employers or the managerial staff members. the employers or the managerial staff members. 7. To incite or indulge in wilful damage to employers property connected with the industry. 8. To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work.